Sunday, November 20, 2011

David Segal's hatchet job on law schools...

12/13 UPDATE:  I appreciate Professor Fish's link to this piece, but I should emphasize that my point is that immediate practical utility is not the benchmark for serious scholarship; law schools should, of course, also teach lots of things of practical utility, and they all do.

================================= The New York Times, which means it deserves a response, beyond the howler already noted.   So herewith a few observations about what it gets right and what it gets wrong. 

Let's start with the hyperbolic title of the piece:  "What they don't teach law students:  lawyering."  But, of course, the actual evidence adduced doesn't support that conclusion, but a different one:  namely, that there are some tasks lawyers perform that they didn't learn in law school.  Obviously what law schools do teach--knowledge of the basic doctrine in central areas of law like contracts, torts, and property, as well as more specialized fields like antitrust and corporate tax; legal research and writing; the analysis of judicial opinions and the general skill of "legal reasoning"--are all part of lawyering.  So the only additional question is:  what else should law schools teach? 

A sidebar column lists skills that "corporate clients wish associates were taught in law schools," including, for example, "Greater familiarity with transactions law, including how to draft, evaluate and challenge a contract."  But this is already puzzling, as I'm not aware of a law school that doesn't offer a class on contract drafting.   Other examples:  "knowing how to settle a case" and "deeper knowledge of regulatory law and the ability to respond to a regulatory inquiry or enforcement action."   One might reasonably ask how one actually teaches the former, though perhaps clinical simulations could discharge the task.  (Here's a little secret that never gets mentioned in these kinds of articles:  namely, that the big law firms often balk at law schools teaching these kinds of "know-how" skills, because they prefer to train the new lawyers to do it the firm's way, not the law school's way.)  As to the latter, every law school has extensive offerings pertaining to "regulatory law" (administrative law, telecommunications law, health law and so on are staples of the law school curriculum), where they probably don't do as well is in teaching "the ability to respond to a regulatory inquiry or enforcement action."  But as with "knowing how to settle a case," this gets to the core issue:  law schools are good at teaching what philosophers call "knowing that" (propositional knowledge) and not as good at teaching "knowing how".  But propositional knowledge is essential for lawyering, and law schools, in general, teach it well.   Law schools discharge the teaching of "know-how" skills more unevenly, but they do some quite well, and typically present curricular opportunities to learn most of them.

Onward to some other parts of the article, starting with the favorite anti-intellectual cliche of them all:

The essential how-tos of daily practice are a subject that many in the faculty know nothing about — by design. One 2010 study of hiring at top-tier law schools since 2000 found that the median amount of practical experience was one year, and that nearly half of faculty members had never practiced law for a single day. If medical schools took the same approach, they’d be filled with professors who had never set foot in a hospital.

This is remarkably misleading along several dimensions.   Start with the most trivial issue:  medical school faculties are, in fact, full of pure researchers, and, as in law schools, research achievements are the measure of prestige.  But put that silly comparison to one side.  The "2010 study" cited (see pp. 129-130 of the article) involved an absurdly limited sample, including just 40 law schools, and not counting any faculty who had been hired after 2000 but moved on to another law school thereafter!  No raw numbers are given, but my guess is at some schools the sample consisted of two or three faculty.  And what the 2010 study reports is only that "nearly half of faculty members had never practiced law for a single day" at the top ten law schools, which also strikes me as utterly bogus--I am guessing the author did not count clerkships in order to produce this result.  (Our two newest junior hires at Chicago include a former partner at Kirkland & Ellis [with a decade of experience] and a former commercial litigator from Mayer Brown, who practiced for five years--I suspect we are at one end of the spectrum in this regard, but I'm quite sure the other end of the spectrum isn't 50% of junior faculty with no practice experience.)

Even if the "facts" invoked are bogus, is it true that the "essential how-tos of daily practice are a subject that many in the faculty know nothing about--by design"?  The answer to that is 'yes,' just as it's also true that the "essential how-tos of being a law professor are a subject that many in the law firm know nothing about--by design."  Practicing law, on the one hand, and teaching and writing about law, on the other, are different jobs, and only the unstated and absurd assumption that the latter requires no skills at all apart from those needed to practice law makes the initial claim seem even remotely sensible.   Law schools hire people to be law teachers and scholars, and law firms hire people to be lawyers.  Why is this so surprising?  Even someone like me, at the 'highly theoretical' end of the scholarly spectrum, with only a bit more than a year of full-time practice experience, has often helped out lawyers and judges with problems in evidence law, a substantive law area that I've taught and thought about long enough that I can see my way through an evidence thicket that even skilled practitioners can't. 

But it may be worth emphasizing that far more of my colleagues in the academy not only could practice law, but actually do practice with some frequency.  When I was in Austin, the joke used to be that "the most prestigious law firm in the state of Texas was the University of Texas School of Law," a testament to the extensive involvement in practice that marked that faculty.  For an elite law school, Texas faculty probably had more involvement with practice than most, but in point of fact every elite law school (and every non-elite one as well) has plenty of faculty who are engaged in law practice, either paid or pro bono.

And the converse bears emphasizing as well:  plenty of scholars with no practice experience, indeed not even a J.D., have made indisputably important contributions to the legal profession.  My colleague William Landes, a PhD economist without a law degree, is by anyone's accounting one of the giants of intellectual property law, among other areas!  Northwestern's Kenneth Ayotte, a PhD economist without a law degree, is by anyone's accounting one of the leading contributors to scholarship on bankruptcy law in the United States.  These examples could easily be multiplied,.

The article continues: 

“Law school has a kind of intellectual inferiority complex, and it’s built into the idea of law school itself,” says W. Bradley Wendel of the Cornell University Law School, a professor who has written about landing a law school teaching job. “People who teach at law school are part of a profession and part of a university. So we’re always worried that other parts of the academy are going to look down on us and say: ‘You’re just a trade school, like those schools that advertise on late-night TV. You don’t write dissertations. You don’t write articles that nobody reads.’ And the response of law school professors is to say: ‘That’s not true. We do all of that. We’re scholars, just like you.’ ”

I'll assume the article quotes Professor Wendel accurately, though I have to say in nearly twenty years in law teaching, I've never met anyone in the legal academy who had this worry.  But moving on:

This trade-school anxiety can be traced back to the mid-19th century, when legal training was mostly technical and often taught in rented rooms that were unattached to institutions of higher education.

A lawyer named Christopher Langdell changed that when he was appointed dean of the Harvard Law School in 1870 and began to rebrand legal education. Mr. Langdell introduced “case method,” which is the short answer to the question “What does law school teach you if not how to be a lawyer?” 

Poor Langdell, libelled post-mortem by an ignoramus in the pages of The New York Times!  Langdell wanted to make the study of law "scientific" not because he had trade-school anxiety, but because in his mind science equalled knowledge, so only if a field were scientific could it be thought to actually convey knowledge of its subject-matter.  That way of thinking was widespread in the Western world from the late 19th-century onwards, and Langdell's case method was simply an effort to articulate a science of law, a method that would yield actual knowledge of what the law is and what the courts are doing. (The American Realists fifty years later agreed with Langdell that the study of law should be scientific, but disagreed with him that to really understand law and courts you could limit yourself to doctrinal rationales in judicial opinions.)  

Now we come to a remarkable concession by Mr. Segal:

Defenders of the status quo say that law school is the wrong place to teach legal practice because law is divided into countless niches and that mastering any of them can take years. This sort of instruction, they say, can be taught only in the context of an apprenticeship. And if newcomers in medicine, finance and other fields are trained, in large part, by their employers, why shouldn’t the same be true in law?

But those pushing for more practical content aren’t looking for a bunch of classes in legal minutiae, nor do they expect client-ready lawyers to march off their campus. Instead, they would like to see less bias against professional training and more classes that engage the law as it exists today.

I'm no defender of the "status quo" (a point to which I'll return), but I do wonder where the evidence of "bias against professional training" is if the issue isn't the absence of "classes in legal minutiae" or the fact that law schools don't produce "client-ready lawyers to march off their campus"?  If someone really thinks law schools don't "engage the law as it exists today," then they must literally have no idea what the curriculum looks like.  (This claim should be particularly infuriating to the many scholars involved with 'empirical legal studies'!)

Moving along:

[T]here are few incentives for law professors to excel at teaching. It might earn them the admiration of students, but it won’t win them any professional goodies, like tenure, a higher salary, prestige or competing offers from better schools. For those, a professor must publish law review articles, the ticket to punch for any upwardly mobile scholar.

This is absolutely right, and is a problem throughout higher education.  A shame, though, that instead of discussing a solution to the problem, it serves as an introduction to an idiotic, anti-intellectual broadside:

Still others crossbreed law and some other discipline, a variety of scholarship that seems to especially irk John G. Roberts Jr., chief justice of the United States. “Pick up a copy of any law review that you see,” he said at a conference this summer, “and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

In fact, many of these articles are not of much apparent help to anyone. A 2005 law review article found that around 40 percent of law review articles in the LexisNexis database had never been cited in cases or in other law review articles.

Of course, much of academia produces cryptic, narrowly cast and unread scholarship. But a pie chart of how law school tuition is actually spent would show an enormous slice for research and writing of law review articles.

How enormous? Last year, J.D., or juris doctor, students spent about $3.6 billion on tuition, according to American Bar Association figures, accounting for discounts through merit- and need-based aid. Given that about half of a law school’s budget is spent on faculty salary and benefits, and that tenure-track faculty members consume about 80 percent of the faculty budget — and that such professors spend about 40 percent of their time producing scholarship — roughly one-sixth of that $3.6 billion subsidized faculty scholarship. That’s more than $575 million.

A few points deserve to be made about this kind of "reasoning:

(1) In every academic field--including the hard sciences and medicine--most of the "scholarship" produced is ultimately worthless.  But we have no way to sort the wheat from the chaff ex ante anywhere.  We let a thousand flowers bloom, and hope that one or two will survive for a generation or more.  Unless one really thinks there are no scholarly ideas about law of any value--and I assume no one thinks that, not even clueless journalists like David Segal--then it's not clear what the alternative is to hiring teachers who are also scholars.  There is a serious problem in the case of law schools, namely, that almost all of them try to operate on the "research university" model, for understandable reasons.  But the hard question is how to change that.  Changing ABA rules about law school accreditation might help.  

(2) It's clearly not the case that most law professors spend 40% of their time producing scholarship.  Some--like Campos the Scammer or the queen of narcissistic blogging, Wisconsin's Ann Althouse--probably don't even spend 1 or 2% of their time doing that.  A real legal academic like my colleague Douglas Baird--the nation's preeminent bankruptcy scholar and a gifted teacher and a regular advisor to jurists and practitioners--describes the time allotment as one-third scholarship, one-third devoted to teaching, and one-third to institutional service and administration (that sounds right to me as well).  But the accounting isn't the real issue here--the real issue is the idea that tuition "subsidize[s]" faculty scholarship.   Students at all levels of education pay tuition, and much of that tuition pays the salary of faculty, who both teach and produce scholarship.  This isn't a "subsidy," i.e., it's not a gift or a grant.  To be sure, many students, if given the choice, would probably say, "I'd rather just pay enough to get faculty who can teach the courses, not do scholarly research," but that doesn't make the fees for legal education a subsidy of anything--as little as the fact that I'd rather not pay taxes to support the bloated U.S. "defense" budget means that my taxes are a "subsidy" for the Pentagon.   Calling it a "subsidy" already supposes a conclusion that hasn't been established.  

(3)  The criterion of scholarly inquiry is not whether it is of "help" to someone.  Prozac is of "help" to lots of people, but it is not scholarship; and the great Austrian legal philosopher Hans Kelsen was of "help" to the constitutional systems of numerous countries after World War II (he basically designed them), though I'm quite sure his Pure Theory of Law is unintelligible to most law students and lawyers.   The criterion of scholarly inquiry is whether it makes a contribution to knowledge and understanding, not whether it "helps."  Of course, we know from history that genuine knowledge often helps with a host of practical and concrete problems, but it is the central premise of a research institution that the measure of its achievement is the quality of the scholarship, i.e., its contribution to knowledge--whether of law or biology or literature--not its practical pay-off in the short-term.  American universities, including many American law schools, have an extraordinary track record on this score.  That we need more diversification of missions among American law schools shouldn't obscure these facts central to the mission of universities.

There's more to be said about the NY Times article, but I'll stop here, as I'm sure others will take up these issues.

ADDENDUM:  Two more useful reactions to the Segal piece, one critical, one less so, but both make points worth considering.

ANOTHER:  Brad Wendel (Cornell) clarifies his remarks and offers additional commentary.

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