Form and …Substance(?) in the Reform of American Legal Education

Another post went up on the Prawf’s Blawg last night, a second time into the practice v. theory ring by Paul Horwitz (Alabama).  I discussed this issue yesterday, and e-mailed a section of the post (the complaint that the professors aren’t looking at student feedback, along with my thoughts on what should be changed) to the four professors I mentioned.  Two of them have written back, and I want to first take a look at Horwitz’s new contribution.

One matter of clarification before looking at the substance of his post.  In yesterday’s post I stated that, going by his faculty profile, Horwitz has not practice law, and as such might not be a good judge of what how lawyers think and what sort of training is best for them.  Horwitz addresses this point in his new post:

I practiced on both sides of the border [US-Canuckistan] — making me, by some lights in the current debate, an “experienced” law teacher.

Now, it’s a bit unclear just what sort of practice experience he has. He says that he “articled” in Canada, which is where recent grads practice for a year under an experienced attorney before being admitted to the bar. And, I think he’s right that this is pretty similar to being a first year associate, as many (used to) start before getting their bar results, and still only months later would they actually get admitted:

It is true that we were not fully fledged members of the bar, but we performed the same tasks, ostensibly under supervision; the same is true of first-year associates at large firms in the U.S., whose work is supposed to be subject to supervision by higher-ups lest they face discipline under the rules of professional responsibility.

However, Horwitz doesn’t mention any other practice experience other than this one year of articling. So, yes, “by some lights” he is an “experienced law teacher.” But, I think by most lights…no, not really.  Unless he has some other experience he’s holding back, in which case he needs to take a trial advocacy class and learn how to present evidence better. [Update: In the comments Horwitz clarifies that he has had 5 years of practice experience. His faculty profile lists 32 publications and 4 prior teaching positions, but leaves off this 5 year practice experience; makes you wonder where the school's priorities are.]

Now, on to the meat of his post, and it’s pretty long, so I’m not going to address every bit of it.

In my last post on the subject, I argued that a substantial, although under-recognized, component of the practically minded law teaching that many critics of current legal education call for already exists in our law schools.  It is law as taught by adjuncts and clinical programs.

First, while it is true that all (current) practitioners are adjuncts, it is not true that all adjuncts are practitioners.  Any professor who has any real job outside of the law school is an adjunct, and this includes professors who teach at multiple schools.  Included in this are the “name brand” theoreticians, who often teach at two or three schools in the same year.  It also needs to be noted that students are often limited in the number of adjunct credits they could take (I think the norm is 6 hours).  You need what, 89 total credit hours to graduate?  If your school has the same restrictions as mine, that’s only 6.7% of your legal education that can come from adjuncts.

But, more importantly, Horwitz seems to be glossing over the fact that many of the good practice-oriented classes are over enrolled.  No one is saying that there are no opportunities to get practical experience in law school; the complaint is that the opportunities are too scarce.  But, to be fair, Alabama is a bit different from other schools when it comes to opportunities to take clinical classes:

The Law School guarantees every interested student the opportunity to participate in at least one law clinic before graduating, one of the few schools in the country that makes such a guarantee.

That sounds pretty awesome, and in comparison to many schools, it is.  But, it also says some not-so-great things about both Alabama and law schools in general.  First, it acknowledges that in the vast majority of schools, students are not guaranteed the chance to take a clinical program.  And second, there is no guarantee that you will get the clinical program you want.  If you plan to go into corporate law, but don’t get the civil law clinic, well, you may find that the elder law clinic you did land isn’t all that useful to you in your career.

Also, the clinics at Alabama are worth only 4 credit hours.  If you manage to snag two clinic spots (which of course, there’s no guarantee that you will, or what those spots would be), we’re still only talking about 8 credit hours, or less than 10% of your legal education. Whoop-dee-freakin-doo!

I think what many law students are saying is not so much that they want training as that they want jobs. Simply creating 200 professional law schools with professional training won’t achieve that result if the demand for legal services is still lower than the supply of graduates; nor will mandatory articles of clerkship.  [...]  I suspect many of those students or recent graduates would be more than happy to accept theory-spouting professors, if they knew they could find remunerative work at the end of the process.

What this suggests to me is that we would answer this complaint better simply by eliminating a substantial number of law schools, regardless of the theory-vs.-practice debate.

Horwitz is correct that the job problem wouldn’t go away by creating a second legal education system that focused on skills and also cranked out the same 40,000+ attorneys the current system does.  But, no one is suggesting focusing more on skills and also doubling the number of attorneys at the same time.  Of course that’s a bad idea.

There are two ways to help recent grads, one of which he points out, which is reducing the supply of lawyers. That will naturally drive up demand for those who do get the degree.  But, law students would also be helped by increasing the value a law grad.  Of course, Horwitz doesn’t address this.

While virtually all lawyers, aside from equity partners, would be benefited by a decrease in lawyer supply, I know that most young lawyers would be even better off if our degree actually came with some marketable skills.  Yes, the lawyer-hydrant needs to be closed, but because there actually are too many lawyers, not because doing so is an easier fix that graduating competent professionals.

One last thought from the professor:

There appears to be a great demand for law school spots despite the economy.  Moreover, law professors are regularly told by law students (including many advocates of a “practical” approach to legal education) on legal blogs and elsewhere that the student is a consumer and an adult and should be free to make whatever choices he desires, including whether to show up for class at all and whether to use or refrain from using laptops in whatever manner she desires.  If we actually believe in this anti-paternalistic principle, then I’m not sure why the current setup needs to change.

I’m not sure if this jab is directed specifically at me.  This was posted several hours after I e-mailed Horwitz, and I do have a legal blog, and I’m not sure how many other professors are being told anything on legal blogs (after all, not many of them read this tripe), and my e-mail to Horwitz did focus on looking at what the student wants.  But, either way, I know I never claimed that being a consumer means you should be free to get legal education in any way that you want.

Some people may want the Burger King approach to legal education, take whatever classes they want, the school’s recommendations be damned.  But I suspect they are in the minority; most of us would prefer something more akin to an upscale restaurant.  You have a menu with lots of excellent choices, but if you order something stupid (“I’d like my pork chop rare please”) the chef won’t cook it.  We should have enough opportunities to find things that will suit our tastes, but the law school should be in the kitchen maintaining quality control and making sure we’ve ordered a balanced meal.

Instead, what we often get is an experience that would land a restaurant on the next episode of Kitchen Nightmares.  “May we interest you in one of our highly rated seafood dishes?  …Oh, I’m sorry, we’re out of the king crab today, we only had enough for a dozen people, and you were number fifteen on the list.  …The monk fish?  Oh yes, again, I’m sorry, there was only enough for ten servings, and you were number eleven.  How about the tilapia, it’s still delicious and we have fifty more servings available.  …Excellent!  Any appetizer for you today?  …Oh yes, our steak tartar is very popular, one of our best dishes, but I’m sorry, it conflicts with the tilapia.  You could come back tomorrow and try it, except that it won’t be offered again for another two years.  Can I interest you in Enlightenment Views of Crispy Duck Salad instead?”

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13 Responses to “Form and …Substance(?) in the Reform of American Legal Education”

  1. Pete Says:

    Hey this is too academic!

    All I Want 2 know is where 2 get some pussy in NYC ?

    Any ideas –no gold diggers, ok ?

  2. es Says:

    I’ll read this when it’s on ATL next week.

  3. BL2Y (No relation) Says:

    You can always go to the ASPCA. Plenty of pussy and more bitches than you can handle.

  4. bl1y Says:

    es: :-D

  5. Dan Says:

    Great informative post! It truly shows the delusion of professors who dont realize that the demand is only as strong as the free federal money.

    “I think what many law students are saying is not so much that they want training as that they want jobs.”

    Exactly. If schools are hell bent on claiming it is the employers responsibility to train AND that their “employment rates” are so wonderful, the topic should start and stop with this principle

    We get more eduction to get better jobs with higher upside. Period. To argue otherwise is to reveal yourself as delusional boomer shill.

  6. bl1y Says:

    Dan, if law schools are going to insist that their primary purpose is to teach a special way of thinking, then they need to come out and explain why they charge 20%+ more than their undergraduate programs which…DO THE EXACT SAME THING!

  7. Lawyer for Hire Says:

    Actually, you can pretty much get any clinic spot you want at Alabama. Demand was low enough that I earned 16 Clinic credits and we were frequently short-staffed for the work load, even when a Clinic was over-enrolled.
    However, you are not going to learn much in the way of corporate law in the Civil Clinic; it is more of an incubator for general practitioners.
    I strongly credit Alabama’s clinics with providing the experience and instruction that built me into an attorney as opposed to a JD fit for document review and not much else.

  8. Dan Says:

    “they need to come out and explain why they charge 20%+ more than their undergraduate programs which…DO THE EXACT SAME THING!”

    Why? Who is gonna make them? The Attorney General? Department of Education? The FTC? The ABA? Or as the libertarians prefer, the market will just correct itself?

    Who cares about the Lanham Act anyways? We can just trust our schools to do the right thing. Besides, thinking like a lawyer is hard to quantify. Nevermind, its worth about $120K. Right?

    :)

  9. bl1y Says:

    Learning corporate practice doesn’t build you into a doc review jockey. Really, the only law that’s useful for doc review is going to be attorney/client privilege and work product for doing defensive doc review. What builds you into a JD only fit for doc review is going to a TTT.

    Though you are right about the civil law clinic, it’s civil litigation, and not general business law like I thought (corporate formation, contracts, etc). Seems like it would maybe train you for being a general litigator, but not necessarily a general practitioner.

  10. Debbie Says:

    I would like to do doc review for my dad, but he does not trust me yet. He says I have no experience.

  11. Paul Horwitz Says:

    Just a couple of quick and friendly but non-substantive responses. First, the bit about student-as-consumer was not aimed at you. Second, the failure to respond was partly due to time pressures and partly because I thought the other responses you got were pretty fair. For what it’s worth, my views may be right or wrong but they certainly reflect conversations with and concern for students and their views. Third, I actually don’t think I qualify as an experienced practitioner under a reasonably stringent definition of the term, but my legal practice prior to law school ran to about five years in Canada and the US, not including a federal court clerkship. Finally, as I have indicated in subsequent comments, I am certainly not opposed to making sure that skill-oriented courses and clinics meet enrollment demands; I don’t think that reform requires a radical overhaul of the system, however (although there are other arguments for such an overhaul).

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