NYT front-pager: law schools don’t teach how to be a lawyer

by Walter Olson on November 21, 2011

The story, by David Segal, is here, and yes, I did get there first earlier this year in chapter 3 of my book Schools for Misrule (which you can now take a closer look at through Amazon’s “Look Inside the Book” feature). Reaction from legal academia to Segal’s piece has been largely negative (Matt Bodie/Prawfs, Adler roundup), but Orin Kerr argues:

there’s an underlying point that I think is both important and correct: Law professors, at especially the “top” law schools, are becoming less connected to the legal profession. As a result, over time, they are less likely to know — and therefore less able to teach — the perspective an experienced lawyer would bring to legal problems.

And here is John Steele in the comments section at Prawfs:

Guys, lighten up. The article goes a little overboard here and there but for a general audience readership covers a lot of ground accurately. If “man bites dog” is what makes for news, the fact that students rack up $150,000 in debt and have no clue about mergers get done is news. It’s not news for those of us in practice or law schools or an in-house law departments, but it’s certainly news for the general audience.

Gideon Kanner sees an ideological angle.

P.S. So does Hans Bader. And John Steele amplifies his comments, while Rick Garnett weighs in on the anti-Segal side. Further: Erik Gerding.

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Law Schools: Incubators of Evil and Waste?
11.21.11 at 12:19 pm
NYT-on-lawprofs reactions, cont’d
11.30.11 at 12:48 am

{ 4 comments }

1 Young Practicing Lawyer 11.21.11 at 1:35 pm

IMO, law school (even at an elite airy-fairy law school) gives students a fair amount of knowledge about what’s involved in litigating a case (outside of non-traditional forums like immigration court, land court or family court) but it absolutely does nothing to prep students for doing transactional work.

Even if you take upper-level electives in corporate law, the readings and/or final exam won’t teach you any drafting and won’t teach you anything about the nuts-and-bolts of how to do transactional work. Part of this is because Langdell set law school on the “case method” system and there is not much (if any) case law reading in doing a deal.

But I think the real culprit is that law professors (most of whom have only practiced for several years) don’t actually *know* how to carry out a basic corporate transaction. They are ignorant of the nuts-and-bolts. It’s basically like having a third-year associate be the exclusive source of mentoring and/or training for your new lawyer (since most law profs leave law firm life at 3-4 years for the greener pastures of academia).

You can take all the corporate classes you want in law school and you won’t have the faintest inkling of what’s involved in closing a deal or even what the papers look like/where they need to be recorded.

If you’re first in your class at Yale Law, you’re really a zero marginal product worker as a first-year associate on the corporate side.

2 Anonymous Attorney 11.21.11 at 3:26 pm

To echo YPL, I went to law school knowing almost nothing about practice (neither parent was a lawyer), and I wasn’t even aware in my second year of law school that law firms basically handled two kinds of work: litigation and transactions.

Of course, the same ignorance of nuts-and-bolts could be said of much other education, as well: college, for instance, isn’t really even supposed to be technical. It’s basically a part of the social agreement: you enter upon this expensive, four-year experience, and it demonstrates to us employers that you’re willing to play the game. You were smart enough (cough) to get in, and make it through, and you demonstrated commitment by taking on the debt. While there, you spent time with lots of other career-bound people, so you know how to act around them.

Law school is similar, though I would argue somewhat more technically helpful. I can honestly say that I draw upon my legal education to some extent even 10 years out.

I support David Lat’s idea of making law school two years, and two years of apprenticeship on top of that. (I think that’s his idea.) Law school does NOT need to be three years long. One year, however, would be too short.

Finally, why are so many law profs disconnected from practice? Well, it’s too icky. Unless you’re doing some cool lefty pro-bono stuff, nobody really wants to practice law. It’s a job that involves daily struggles with human beings. Much funner to write ponderous articles that nobody reads, take long vacations, and make about the same amount of money. Law students should be clued into this.

3 Jim Collins 11.21.11 at 4:35 pm

Damn. All this time I thought that I went to school and studied engineering to become an engineer. I didn’t know anything about a “social agreement”. I wonder if I should sue the University that I attended?

4 James Maxeiner 11.25.11 at 10:35 am

Walter Olson points out in “Schools for Misrule,” that there is a lot about law schools that is subject to criticism and improvement. As previous comments point out, a particularly serious problem is a disconnect between law school and legal practice. That disconnect is not, however, because law schools pay too little attention to practice skills. In most modern legal systems other than the American, practicing judges and lawyers teach practice skills AFTER students have learned law and legal reasoning in law schools. For reasons which I explain in my book and article of the same name, “Educating Lawyers Now and Then: An Essay Comparing the 2007 and 1914 Carnegie Foundation Reports on Legal Education,” the economics of legal education today do permit otherwise. (The book, which includes the 1914 report is available at amazon.com; the article alone is available for free at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1151529.)

From the perspective of Overlawyered, the disconnect should be seen differently. It is a disconnect between law school AND law practice, on the one hand, and society and the legal system, on the other. Law schools should not be a hatchery for bad ideas; litigation should not be a weapon. Law schools should contribute to a litigation system that routinely implements the law as it is and to a legislative system that helps create law as it will be. Litigation should help the legal system function like a reliable public transit system. It should not be a taxi system for those few who can pay the price of a trip.

Whereas the 2007 Carnegie Report foreshadowed David Segal’s article in the New York Times in a call for more clinical education and less “legal scholarship,” the 1914 Carnegie Report called for scholarship to create a better system and for less fixation on practice. What should be disturbing is that since 1914 little has changed in law schools and in legal practice. Practically every day Overlawyered chronicles our failures to improve. In my newest book, “Failures of American Civil Justice in International Perspective,” I show how other legal systems avoid our failures and work better. One message is that what we have long known to be best practices (e.g., professional judging), can work when given the chance. (Amazon.com offers an extended preview.)

Finally, returning to the specific point of disconnect between law school and legal practice, let me float a provocative point that may be suggested by “Schools for Misrule” and Overlawyered: the career path of contemporary law professors works against developing a well-functioning legal system and promotes instrumental uses of law. Most new law professors, especially those at elite law schools, preferably attended Harvard or Yale, or possibly one of a handful of other law schools, were law review officers, and clerked for a federal judge, preferably at the Supreme Court, or possibly at a Court of Appeals or District Court. Valuable as that clerking may be, it is not representative of the legal system most Americans confront. Practice experience post-clerking, if any, preferably is brief (less than two years), at a level without responsibility, and likely to be in a boutique environment. In short, new faculty are without experience with the real world of a society trying to comply with law. The world in which they are trained is that described by Philip K. Howard in the Foreword to my book, Lagado in Swift’s “Gulliver’s Travels,” where “everyone follows a theory slavishly, with consistently disastrous results.”

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