PrawfsBlawg: Another Party Heard From on Legal Education

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Monday, May 28, 2012

Another Party Heard From on Legal Education

Via links in some comments, here's an addendum to my discussion last week of practical- or client-centered legal education (which, as you recall from that post, didn't seem to get much love from the constituents on the Campos blog last week). It's a post?by Dru Stevenson at the Circuit Splits blog, which I'm afraid I wasn't aware of, titled "Should Law Schools Focus on Lawyering Skills?" Stevenson argues the answer is no. A snippet or two:

I . . . disagree with the nationwide push toward making law schools into trade schools, the attempt to make the institutions less intellectual. ?And I recently blogged?here?about the direction I would like to see schools go--echoing the vision recently outlined by the Dean of the law school at Boalt Hall (California-Berkeley). ?Comparing law to another profession, would you prefer that your surgeon had spent more time taking courses on "counseling patients," and "medical clinic management," or more time studying cellular biology and organic chemistry? For my surgery, I would prefer the one who had a more intellectually rigorous program, not one that focused on role-playing exercises and rudimentary paperwork-completing skills. ?I wonder if any other profession criticizes its theoretical wing like ours does.?

The most troubling aspect of turning the focus of law schools completely toward "skills" is that this is the seed of our institutions' destruction. When a consensus finally emerges that the whole point of law school is training kids in the mechanical tasks of lawyering - how to write a brief, how to give an opening argument, how to look up the law on something - people will then realize that law schools are not really necessary at all for teaching "skills" - these are better learned by "doing" and by repetition. A law school with a skills curriculum is a law school that is not worth the time or tuition, as the same skills would be better learned on the job in apprenticeships. ?After we all switch to teaching mechanical skills, there will be a movement to abolish law schools completely. ?The academic study of law will get absorbed back into the political science departments from whence it came, and lawyer training will be done the same way we train & license paralegals. . . . ??

In terms of marketable skills, there is an inconsistency between what the firms?say?they want and what the firms?do?when they hire new graduates. The firms say they want "practice ready" associates and complain that the law schools are too theoretical; but when given the opportunity to hire graduates from the HALF of the law schools that are mostly practice-oriented and non-theoretical, they pass over them and hire associates from the top 100 law schools instead - year after year, decade after decade. ?I know that some in the legal academy do not believe in rational markets or market discipline, so they would dismiss this as "all the firms are being stupid," or would say that the hiring partners at big firms are fooled by the prestige or brand names of elite schools. ?It's really strange, though - that after decades in practice, the graduates from the "skills" schools do not seem to rise to the top of the profession enough to influence or change the hiring patterns. ?One might expect at least?some?of the firms to realize that the "skills" schools are producing superior lawyers ("practice ready") and that some would switch to interviewing on their campuses instead of the elite schools. ?It just doesn't happen - year after year, graduates find it easier to get jobs if their diploma is from a more elite (read: more theoretical) law school. The graduates from lower-ranked law schools are much more likely to find themselves unemployed and having to start their own solo practices. The hiring market has never backed up the claims that students are better off being taught lawyering skills instead of higher thinking about the law. Law firms overall prefer to hire students from schools that tilt toward legal theory. The shift toward skills is not a response to market pressure; it runs?counter?to the market.?

Prof. Stevenson makes clear that he comes from a practically oriented school, so I appreciate hearing his perspective. I must respectfully disagree with him, however--and I say that as one who does write on the "intellectual" side and doesn't think there's anything wrong with that for individual professors. (Although being a theory type doesn't absolve one of one's fiduciary duty to ask what is best for legal education on the whole, and particularly what is best for one's own school and students.) There is no doubt that other professional wings of education do?face the same tensions and criticisms. Boalt's model is interesting, but we should no more treasure the idea of making every school more like Boalt than we should the idea of making every school more like Yale, or indeed more like any specific school.

The second paragraph excerpted above--the one that worries that "turning the focus of law schools completely toward 'skills' is . . . the seed of our institutions' destruction"-- is interesting. But I don't see why we should think of this as a bad thing in and of itself. I might (or might not) feel differently about it if every?school took this path, but if it happened in a number of places I'm not sure that Stevenson has shown why that would be so terrible.?

Finally, I agree with Stevenson that there appears to be "an inconsistency between what the firms?say?they want and what the firms?do?when they hire new graduates." But: 1) his paragraph seems heavily weighted in terms of the behavior of Biglaw firms; 2) I do believe there is a "firms are being stupid" element to this--or, put differently, I think the big firms' credentialism is (or was) partly client-driven but is also a function of foolish reproductive tendencies at those firms and hurts their business in the long run; and 3) in any event, as I argued earlier, and especially given the reality that most students don't end up at these firms regardless, it still makes sense to me to ask, not what firms want, but what clients need.?

In any event, I was happy to hear a different point of view. Read it for yourself. A couple of good comments there as well. And no, I do not think discussing this issue obscures the "it's the jobs/money" arguments, which remain important.

?

Posted by Paul Horwitz on May 28, 2012 at 09:06 AM in Paul Horwitz | Permalink

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He's also glossing over something really important in that third paragraph: that regardless of the curriculum taught at the elite law schools, they will, on average, have smarter crops of students who are more likely to become good lawyers (see, e.g., Scalia on law clerk hiring: "The best minds are going to the best law schools. They might not learn anything while they?re there, but they don?t get any dumber."). So, all that really tells us is that firms feel the long-term potential and higher average intelligence of grads from the top schools outweighs whatever level of practice-readiness they'd have from grads of lower-ranked schools. If some of those top schools did focus on practice-readiness over theory (say, if Harvard, Columbia, UVA, and Georgetown switched to a practice-focused curriculum), we could then look at the data and have a valid basis of comparison. Without that, though, just comparing the practice-focused, low-ranked schools to the theory-focused, high-ranked schools is ignoring a staggeringly important variable.

(By the way, I don't mean to say there aren't smart students at, for instance, Alabama. Just speaking in averages and perceptions here).

Posted by: Doctor Chim Richalds | May 28, 2012 1:31:03 PM

Law schools need to focus on both. While a greater focus on skills-based learning is necessary. intellectualism should not be abandoned. They are both equally important to the creation of well-qualified practitioners.

I disagree with Dr Richards about the impact of these allegedly smarter students at higher tier law schools. These students might be exceptional test-takers but that doesnt meqn that on average they will be better practitionere. They will simply get better and more opportunity due to this faulty perception. I have encounterer far too many graduates from elite schools with great brains and poor common sense, which equates to inadequate lawyering skills. But alas, thus perception will likely not change...unfortunately.

Posted by: Kendall Isaac | May 28, 2012 2:15:51 PM

I'm with Stevenson, and we do have data: Northwestern has for years been marketing itself as a "practical" elite school. Far as I know they've done fine, but no better than comparably ranked schools, like Duke, Cornell, Michigan, and UVA, in the market. Certainly there's been no market rush to Northwestern by firms to gobble up their "practice-ready" grads. Maybe this is because school can only prepare someone so much for practice.

Posted by: Anon | May 28, 2012 3:31:44 PM

Please permit me to offer two thoughts on this important debate.

1. Focusing on the hiring practices of the largest, most elite firms ("Biglaw") is likely not the best way to ascertain the future course of the market for law school graduates. This is the sector of the market that provided the most inefficient services to clients, and therefore experienced the most profound transformation as a consequence of the current recession. Preparing lawyers to work in Biglaw is rather like to preparing journalism students to work at print newspapers. There will always be some volume of work where the financial stakes are so high that clients will be willing to pay the kind of fees that Biglaw requires for that model to work, but the market is going to continue to push law firms for a higher ration of value received to cost charged, and firms with high fees that fund high compensation and costs will be at a serious disadvantage. Firms that hire lawyers that can more quickly provide cost-effective service to clients, in contrast, will be at an advantage. Hence, the demand for skills training emanating from both clients and legal employers.

2. Yet, even Biglaw tells us where the market is moving. Biglaw, regarding itself as the most elite market participants, naturally wants it both ways. It wants more practice-ready students since clients are no longer willing to pay for the training of young lawyers (and partners at Biglaw seem disinclined to have training costs come out of their own compensation), but Biglaw also wants smarts, since most Biglaw firms believe that the sophistication of their work demands that they hire "the best minds." Most Biglaw firms still consider a degree from an elite law school as the best proxy available for smarts. This is admittedly changing, though slowly, but it remains a prevalent view. Yet, the fact that even Biglaw wants law schools to provide more skills training, albeit at the most elite law schools from which they prefer to hire, tells us much about where the market will push legal education.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | May 28, 2012 3:55:22 PM

I have posted an extensive reply to Professor Stevenson at the Legal Skills Prof Blog at http://lawprofessors.typepad.com/legal_skills/2012/05/dru-stevenson-on-legal-education-a-reply.html. The essence of my criticism is that he has mischaracterized the legal reform movement. I agree with Paul that we need debate on this issue, but the debate must concern what is actually being argued, not a strawman view of the other side.

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