Trolling the Platitudes of Legal Education

Legal education today is under attack from a multitude of quarters. (See my posts here and here for a couple of examples.) Plus ça change, plus c'est la même chose.

While reading Jim Gordley's most recent work, "The Jurists: A Critical History" (Oxford 2013) I couldn't help chuckle when I read several quotes from an article published in the Yale Law Journal in 1943.

According to authors Harold D. Lasswell and Myers S. McDougal in Legal Education and Public Policy: Professional Training in the Public Interest, the goal of legal education should be to train lawyer-policymakers who would work to implement "democratic" values. To what end, you ask?

A legitimate aid of education is to seek to promote the values of a democratic society and to reduce the number of moral mavericks who do not share democratic preferences.

Why these democratic-totalitarian ends?

The laborious work of modern science had provided a non-sentimental foundation for the intuitive confidence with which the poets and prophets of modern brotherhood have regarded mankind. Buttressing the aspirations of these sensitive spirits stands the modern arsenal of facts about the benevolent potentialities of human nature [sic] and a secure knowledge of the methods by which disturbed personality growth can be prevented or cured.

I guess you can count me among the "moral mavericks" but even so one can only wonder what folks 70 years hence will say about silliness of much of what is published in the Journal of Legal Education or what frivolous changes in course syllabuses must soon be implemented at the behest of the American Bar Association acting as an agent of the educrats at the U.S. Department of Education.

Duberstein 2016

In the spring of 2015 I posted several times about the experience of coaching a team from Regent University law school at the premier bankruptcy law moot competition (here, here, and here), which St. John's University law school has hosted every year. Duberstein 2015 focused on something close to every student's heart, the dischargeability of student loans. This time around, and drawing from the ignition switch litigation plaguing the aftermath of the reorganization of General Motors, Duberstein 2016 returns to the complexities of Chapter 11 and the constitutional scope of bankruptcy court jurisdiction. You can read the fact pattern here.

I regret that Regent has not entered a team this time. I am pleased, however, that my new academic home, Campbell University School of Law, will be sending a team to this year's competition thanks to the generosity of Raleigh-based law firm Stubbs & Perdue, P.A. (Read the news release here.) I look forward to mooting Campbell's team as it prepares for this opportunity to shine before America's leading bankruptcy judges and professionals in New York in March.

Preparing for Law School Classes: The Campbell Advantage

What happens when the millennial generation, those of era of helicopter parents, constant immersion in social media, no-child-left-behind primary and secondary schooling, and an undergraduate education often composed of PowerPoint slides and multiple multiple-choice tests, comes to law school?

Shock is not too strong a word. Many students entering law school today have never studied complex texts on their own. Many have never written drafts of papers subject to vigorous editing and mandatory re-writing. Many have never faced an examination that requires advancing an argument instead of reproducing facts. In brief, many have not received the sort of educational preparation that equips them to handle the challenges of legal education.

Today's law students are highly motivated and intellectually facile but frequently, for reasons often outside their control, do not come to law school with the tools they need to do well. Most figure it out eventually but often at the expense of great personal stress and lost learning opportunities. And some who might have succeeded don't develop the necessary tools until it's too late.

For this fall semester Campbell University School of Law provided a one week intensive program called the Campbell Advantage. Every law school has a week of orientation but in my experience it does little to get students ready for the real world of law school classes. Most law school have a one- or two-week program for at-risk entering students. In previous years in the first several days of classes I was frequently able to pick out students who had completed the program because they were more prepared than others.

Campbell has taken this practice to another level by requiring it of all students and providing intensive, personalized feedback on students' examinations. As one of their regular teachers, I noted that we made better-than-usual progress at the beginning of the semester, and made ultimately it further through my Contract casebook than I had in previous years.

My Campbell colleagues who created the Campbell Advantage speak for themselves here. Of additional interest are student comments here.

The Campbell Advantage cannot make a law school success of someone who lacks the fundamental ability or commitment to succeed. It can--and does--give under-prepared students the tools they need to achieve to the best of their abilities.

More On Legal Education

Over the course of a couple of months I posted some comments in response to David Segal's piece in the New York Times about the percieved problems of American legal education (see here, here, and here). A couple of days ago I found a student post here that fleshes matters out nicely. In short, students, take some responsibility. What you need to be an effective lawyer might be right under your nose.

Blackboard Zombies and Indentity Formation

Those who haven't participated in American higher eduction (HE) during the past ten years may not be familiar with Blackboard and it competitors. Blackboard is the principal medium in which distance education (known as correspondence school in the way-back day) is carried on nowadays. The so-called virtual leaning environment (VLE)  is replacing what is now known as face-to-face education (F2F). (Gotta love the education acronyms.)

Law schools like Regent use Blackboard to supplement F2F but many other aspects of HE are rapidly being entirely displaced into the world of VLEs. For example, I post my course syllabus, downloadable PowerPoint slides, extra assigned reading material, an occasional interesting YouTube link, and digitally recorded summary lectures to the Blackboard page for my classes. At the very least, this transfers the cost of reproduction and printing from the school to the students, and at the best it enhances what we do in the F2F classroom, which remains the primary locus of teaching.

Simultaneously, there is another wave of concern among legal educators about the formation of character in law students (called "professional identity" among the educational cognoscenti). Internalization of information and even the acquisition of professional skills aren't enough, according to the Carnegie Report on Legal Education. Law schools should also be in the business of teaching students how to exercise professional judgment. This is a more straightforward task at a Christian law school like Regent. After all, we can look to character traits like the fruit of the Spirit rather than a vague concept like "professional identity."

But more to the point: What is the relationship between Blackboard and character? In other words, how does learning in a VLE affect one's character (or identity, if you prefer)? Here I came across a post entitled "Zombies, Technology, and Capitalism" which you can read for yourself here. If you read it, be sure to look to the comments as well where the author interacts with a critic. In short, the blog author argues that

He hopes [in a book he's writing] to foreground how VLEs are being used as a tool for social control by post industrial capitalism, creating one dimensional men, and women.

In other words, VLE entails useful tools for the system, zombies not thinkers.

And lest anyone think this is the sort of talk that can come only from an ivory-tower academic, you might want to read about how a practicing workout lawyer (a large part of what I did in a former life) has to say about the dangers of being a zombie lawyer here where she worries that

By turning the practice “digital,” are restructuring professionals, like the teachers in Nick Pearce’s study, trying to control their clients instead of trying to understand them? And have our digital “toys” created apathy, for us and everyone else?

Apathy? Hardly the ideal profession identity law schools should aspire to form in their students. Indeed, no law school sets out to inculcate apathy but the potential convergence of VLEs and legal education may create just that state of affairs.

The ABA and the Cost of Legal Education Part 3

Back in December I posted here and here on David Segal's jeremiads about legal education in American. The second post in particular responded to his reporting about the precarious status of the Duncan School of Law in Knoxville, Tennessee. Segal wondered aloud about the ABA's denial of Duncan's provisional accreditation and particularly its anti-competitive effects. I replied by wondering what Segal would say if Duncan's graduates were ultimately unable to pass the bar exam.

Today's National Jurist has an article giving more detail on why the ABA did what it did. You can read it here. Suffice it to say that I believe the ABA's gate-keeping role seems warranted:

A major concern to the ABA was that the school readmitted one-third of the students who failed out of the school. Eighteen students were dismissed for a GPA below 1.25. Six of them, however, were readmitted based on “extraordinary circumstances,” a percent the ABA found unlikely.

Unlikely? Yeah. I guess you could say that. Despite its mission, Duncan is doing no service to students whose only purpose seems to be to pay the tuition to keep the school's doors open.

The ABA and the Cost of Legal Education Part 2

Following what I wrote here about David Segal's most recent New York Times piece on legal education came the news that the American Bar Association rejected Duncan Law School's bid for provisional accreditation. Read about it here. According to the news article, the ABA based its decision on the low median standardized test scores of Duncan's initial students.

This is significant because, if you recall Segal's second piece, he held up Duncan as a model for what's wrong with the ABA's control of the accreditation process. In short, the ABA's mandates (particularly requiring full time faculty to teach core substantive courses) unnecessarily drives up the cost of legal education. But what of the ABA's gatekeeping role? One suspects he'd simply be writing an article decrying the ABA's failure to police law school entrance requirements. But perhaps the ABA shouldn't care about who gets into law school; simply let the bar exam sort out who's minimally competent. For what it's worth, I'm confident that law school enrollments would explode did the ABA not mandate that admitted students have a reasonable likelihood of passing a bar exam. After all, that's the bubble we're seeing in higher education generally. (A nice piece in The Economist here.)

Is there really a higher education bubble? Not according to our political leaders, which is every reason to believe such a bubble exists.

What accounts for this bubble? Indeed, what accounts for the possibility of over 200 law schools to exist in America? The short answer: easily available federally guarantied student loans. Just as Fannie Mae and Freddie Mac share a large portion of responsibility for the housing bubble (and subsequent burst, the aftermath of which will dog us for at least another two years), the U.S. Department of Education should shoulder much of the blame for the foolish decisions by thousands of young folks to see higher education as a consumable experience, rather like an extended bacchanal, rather than as an investment. If school loans were priced on an investment basis, the number of students would radically decrease. And decreased demand would reduce either cost or supply and probably both.

Would this be a national disaster? Would American educational levels further decrease? Would this cause a decline in America's national security and preeminence in the world? We'll never know because the political cost of admitting the educational emperor has no clothes is too high. Federal subsidy of education is every bit the third rail of American political life as is Social Security. (See my thoughts of a couple of days ago about the later here.)

It rather pains me as an indirect beneficiary of the student loan bubble to know I'm part of this system. A sort of reverse Scrooge, if you will. My law school has a particular raison d'être, one that I believes justifies its existence. Was the mission of Regent University Law School to become simply to crank out more lawyers when a surfeit already exists, I hope I would have the courage to walk away.
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The ABA and the Cost of Legal Education

Something about legal education must pay because David Segal has written a second lengthy piece in three weeks in the New York Times about the topic. Segal argues that the cost of legal services is too high because of the pervasive presence of the American Bar Association as the sole body that accredits law schools and the requirement in most states that one have graduated from an A.B.A.-accredited law school to take the bar exam. Two quick comments: unbundling and bar standards.

Unbundling. Segal correctly points out that what falls under the rubric of "legal services" in America is in many other countries spread across several job classifications. In other words, certain routine activities that in America typically utilize lawyers, such as divorce, use non-lawyer legal professionals in other places in around the world.

It seems we are moving in this direction here. Because of the Internet with do-it-yourself legal forms, many Americans get their legal advice from entities several steps removed from a live lawyer. The quality of this advice can be questionable and sometimes ends up costing its users more than hiring a lawyer would have. Perhaps creating a class of licensed but not-law-school-graduate professionals would be helpful. Yet, given Americans' penchant for "the best" from professions like medicine, I'm not sure that this new class of not-quite lawyers would meet with great demand. But I could be wrong. At any rate, it's an idea worth investigating.

Bar standards: Segal also correctly observes that all but a few states require anyone who takes that state's bar exam to have graduated from an A.B.A.-accredited law school. And he also notes that A.B.A. accreditation imposes substantial costs on a law school, primarily in the form of mandating that a school's courses be taught primarily by full-time faculty.

I teach in a state that does not require its bar exam takers to have gone to an A.B.A.-accredited law school. In fact, Virginia does not require its bar takes to have gone to law school at all. You can read about it starting here. A few other states also do not require formal legal education. Given the opportunity to do an end-around costly legal education, I would have appreciated some comments from Segal. One might particularly like to know why so few prospective lawyers take advantage of it. The vast majority of budding lawyers must perceive some advantage to studying law in an academic environment even with its substantial costs.

In brief, while one might question the place of the A.B.A. at effectively the beginning and at the end of the lawyer entry process, I remain doubtful that removing it as the sole accreditor of law schools and universally eliminating graduation from an A.B.A.-accredited law school as a bar admission requirement would make much difference in the supply of low-cost legal services. Unbundling legal services strikes me as a good idea in theory but I have my doubts that it would have a meaningful impact in practice.

What might reduce the cost of legal eduction? And would it have any impact on the cost of legal services? Some more thoughts later.

Cry Me A Bucket Finis -- Fish Vs. Segal

Over the past couple of weeks I've posted here and here about David Segal's NYT piece criticizing legal education. The thrust of my comments were not so much to challenge the goals Segal prescribed for legal education but his means. In other words, who should pay for skills training? Law students or law firms?

In yesterday's NYT Stanley Fish went deeper and argued here that Segal's implicit vocational-school model of legal education was misguided. Instead, by describing his own class at Yale law school, Fish tried to demonstrate that a lawyer's bag of tricks is of little value (and, I would add, actually quite dangerous) unless he or she understands the goals or purposes of the law in a particular society. Here's how Fish puts it:

That understanding is what law schools offer (among other things). Law schools ask and answer the question, “What’s the game here?”; the ins and outs of the game you learn later, as in any profession. The complaint reported by David Segal in his Times article is that law firms must teach their new hires tricks of the trade they never learned in their contracts, torts and (God forbid) jurisprudence classes. But learning the tricks would not amount to much and might well be impossible for someone who did not know — in a deep sense of know — what the trade is and why it is important to practice it.

I'm very pleased that my law school forces students to address the "What's the game here?" question. We certainly suggest some answers or sets of answers that are plausibly true in the Western Christian tradition, although it's ultimately up to the student which understanding of the "game" will guide her practice of law.

In short, there's no conflict among a firm analytical grounding in the law, the acquisition of certain legal skills, and the understanding of what should be the goal of the law in the American civil polity. Anyone considering the study of law should investigate thoroughly whether his prospective law school achieves all three ends.

Check Mike Schutt's Redeeming Law blog here for a short video that will provide a framework for answering these questions before starting one's legal education.

Legal Pedagogy, Skills-Teaching, and Who Pays

Ten days ago I posted some comments here on David Segal's piece in the NYT about lack of skills-teaching in contemporary American legal education. Despite raising some cogent points, I concluded that Segal was parroting the "company line" of BigLaw, which seeks to shift its legal training responsibilities to law schools and ultimately students' pockets. Pay to play, so to speak.

Two articles of interest have even more recently come to my attention. First, one by my colleague Ben Madison here who describes some of the real-world skills practicing lawyers need to have. Second, an example of not only how it can be done but how it is being done today (albeit not in America).

The most recent special report of The Financial Times features a series of articles under the rubric "Innovative Law Schools 2011." You can read them all here but one in particular stood out: Partners in Law. The subtitle--"Firms and Schools are Finding Ways to Co-operate"--says it all. Unfortunately for American law students, it's available only for budding lawyers in the U.K.

Law students in England who wish to practice in anything but the most high-level litigation must undergo a year-long legal practice course before receiving their solicitors license. Apparently several law schools have upped the level of this year by partnering with elite law firms in the City (such as Clifford Chance and Linklaters) to learn both sophisticated practice skills and also the business of business.

Who pays? The students. Who teaches? The law firms.

Seems like a reasonable way to go.

Cry Me A Bucket

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 Mania

What do Belmont University and the Government of India have in common? Both are starting new law schools. For Belmont see http://www.chattanoogan.com/articles/article_160497.asp . You can find India's announcement at http://www.livemint.com/2009/10/08234235/Government-to-set-up-four-law.html?h=B .

Belmont's announcement combines outdated projections on the need for lawyers (doesn't anyone in Nashville read Above the Law (http://abovethelaw.com/ )?) with institutional palaver. Given my limited time in India I can't say that four new law school are four too many but nonetheless I suspect the decision to create even more competition for low-end American legal work was motivated more by politics than a concern for justice.