There are a few nuggets of insight in David Segal's piece in today's NYT. But with lots more quotes than analysis, Segal merely adds another piece to the law-schools-need-to-teach-more-practical-skills saga.
Law school is, by Segal's admission and common knowledge, a very expensive proposition. Skills courses are, if anyone stops to think about it, far more labor intensive than ordinary law school classes that often seat 80-100 students. What would addition of additional skill faculty do to tuition? Does Segal suggest who would end up paying for them? (Hint: not the law firms whining about newly minted law school grads.) And, one wonders, what would current law firms be saying if new law grads knew how to practice law but didn't know the law? If they knew about drafting good looking contracts but not about Contract law? One can be forgiven for being puzzled about why Segal didn't ask such an obvious question. Perhaps law schools could do both but the three years of legal education would become four. Add that to the cost of more skills faculty and ask what would be the cost of legal education. And who would pay for that? (Hint: none necessary.)
One also wonders how, if the law school curriculum has been set since the 1890s as Segal asserts, the current law firm partners ever learned to practice law since it couldn't have been in their legal education. (Hint: their predecessors' law firms underwrote it.)
Following the money is usually a good place to start when considering a newly discovered social "problem." Who stands to gain if law schools add more faculty, if legal education grows longer, and law students pay for it? Why, the same partners who, when associates themselves, were schooled in the practice of law by their firms.
Lest my comments seem to be a self-preserving screed (since obviously I make my living from the other end of the system), let me acknowledge several valid points raised by Segal. First is the accurate observation that faculty hiring in the elite law schools (certainly not Regent, check our faculty profiles here), has an anti-practitioner bias. Hiring folks who have never perfected their legal education with five-seven years of practice is a sure-fire way to insure that their students learn neither the law nor how to practice it.
Second, Segal repeats what is clearly the case: much of what passes for legal scholarship is neither. While there is a place for legal theory there is all the more room for legal doctrine. Unfortunately, just as the elite law schools won't hire as professors those who have practiced too much, many elite law journals won't publish what is too doctrinal.
Third, there is room to improve the law school curriculum. The historical shift of the past one hundred-plus years from a political economy structured almost exclusively by private transactions of many relatively equal actors governed by private law to an economy dominated by institutional and governmental actors regulated by administrative law needs to be reflected in law school. A first-year curriculum dominated by common law courses, even supplemented by constitutional law, gives a misleading impression of what is the law-in-action in America today.
Fourth is the under-utilization of the existing clinical courses. Perhaps law students should be required to take one clinical course or participate in a legal internship. At the very least, they should be strongly encouraged to do so.
Legal education is not for everyone; there are more than enough law graduates every year. But legal education is just that. There's a reason why there are over 200 law schools in America and no lawyering schools. Until the turn of the millennium, law firms understood that they too had a place in legal education. Today they want to shift the cost of what they had borne to the law schools and ultimately law students. A nice (and profitable) trick if they can pull it off.
Law school is, by Segal's admission and common knowledge, a very expensive proposition. Skills courses are, if anyone stops to think about it, far more labor intensive than ordinary law school classes that often seat 80-100 students. What would addition of additional skill faculty do to tuition? Does Segal suggest who would end up paying for them? (Hint: not the law firms whining about newly minted law school grads.) And, one wonders, what would current law firms be saying if new law grads knew how to practice law but didn't know the law? If they knew about drafting good looking contracts but not about Contract law? One can be forgiven for being puzzled about why Segal didn't ask such an obvious question. Perhaps law schools could do both but the three years of legal education would become four. Add that to the cost of more skills faculty and ask what would be the cost of legal education. And who would pay for that? (Hint: none necessary.)
One also wonders how, if the law school curriculum has been set since the 1890s as Segal asserts, the current law firm partners ever learned to practice law since it couldn't have been in their legal education. (Hint: their predecessors' law firms underwrote it.)
Following the money is usually a good place to start when considering a newly discovered social "problem." Who stands to gain if law schools add more faculty, if legal education grows longer, and law students pay for it? Why, the same partners who, when associates themselves, were schooled in the practice of law by their firms.
Lest my comments seem to be a self-preserving screed (since obviously I make my living from the other end of the system), let me acknowledge several valid points raised by Segal. First is the accurate observation that faculty hiring in the elite law schools (certainly not Regent, check our faculty profiles here), has an anti-practitioner bias. Hiring folks who have never perfected their legal education with five-seven years of practice is a sure-fire way to insure that their students learn neither the law nor how to practice it.
Second, Segal repeats what is clearly the case: much of what passes for legal scholarship is neither. While there is a place for legal theory there is all the more room for legal doctrine. Unfortunately, just as the elite law schools won't hire as professors those who have practiced too much, many elite law journals won't publish what is too doctrinal.
Third, there is room to improve the law school curriculum. The historical shift of the past one hundred-plus years from a political economy structured almost exclusively by private transactions of many relatively equal actors governed by private law to an economy dominated by institutional and governmental actors regulated by administrative law needs to be reflected in law school. A first-year curriculum dominated by common law courses, even supplemented by constitutional law, gives a misleading impression of what is the law-in-action in America today.
Fourth is the under-utilization of the existing clinical courses. Perhaps law students should be required to take one clinical course or participate in a legal internship. At the very least, they should be strongly encouraged to do so.
Legal education is not for everyone; there are more than enough law graduates every year. But legal education is just that. There's a reason why there are over 200 law schools in America and no lawyering schools. Until the turn of the millennium, law firms understood that they too had a place in legal education. Today they want to shift the cost of what they had borne to the law schools and ultimately law students. A nice (and profitable) trick if they can pull it off.
There are two main insights contained within your blog that I feel compelled to address. In fact, they are two very important topics which I have been discussing (griping about) over the course of the past several weeks. Thus, it is time to bring the cards out onto the table.
ReplyDeleteFirst, Siegel offers quotes as opposed to analysis. I was struck by this contention immediately after first reading his article the day it was published. However, I inevitably became more frustrated by this "quotation spouting" as many other members of legal academia proceeded to respond to Siegel's article. Everyone seems to have an opinion, yet no one truly offered suggestions for reform that were practical and realistic. Theory simply will not make the grade at this juncture in the journey to legal education reform. I am more inclined, as a student, to listen to those that can offer actual steps or suggestions for correcting what many believe is in need of change.
Second, I concur with the idea that clinics (and also practicums) are underutilized by law students. Law schools are taking the brunt of the recent attacks. However, this is not entirely fair. Law students must be held accountable for their own educational decisions. Critics cannot very well sit there at a computer and proceed to attack law schools when clinics and practicums are readily available for students to participate in. The sad reality is that many students would prefer to take courses that ensure them an easy 'A,' as opposed to taking a course that would help them once they enter the actual practice of law. I was shocked last year to find that a Civil Litigation Practicum, offered at Regent, was canceled because only another student and myself applied. Additionally, it was to my amazement and disappointment at how many students decided to not apply for internships after their first year of law school. Thus, law students must step up to the plate and take control of their education as well. It is true that law schools cannot possibly teach everything in three years. There must be a cohesive counter-balance if reforms are to be integrated. Each course will require something different. Not every course will be able to integrate a full range of practical skills exercises, for example.
With all of that said, legal education is need of reform. However, it is something that must be done overtime and done cautiously, so as to not lose the ability imparting the law.
Lastly, my final criticism of Siegel's article is that it appears his rantings can mostly be directed to top tier law schools. He failed to mention law schools that ARE integrating reforms, such as practical skills and professional identity.