Critical Theory of Law and the Runs Seminar

Posted in Uncategorized on September 1st, 2010 by bl1y

A continuation of the Theory v. Practice debate that you can find, here and here and here, and elsewhere on Prawf’s Blawg,

Imagine you’re at a restaurant, let’s call it Standard Ristorante, you order the chicken alfredo, and when you taste it, the flavor seems a bit off, it’s somewhat sour (maybe the cream had started to turn).  You flag down the waiter, inform him of the problem, and 19 times out of 20, they’ll just take your word for it and either remake your meal, or offer a substitute (maybe you’d like the fra diavolo instead).

Now, imagine instead of Standard Ristorante, you go to a place let’s call Jaydee’s Ristorante, and again you order the chicken alfredo.  Again, the the cream has turned, but this time due to the other seasonings, your lack of culinary expertise, and the fact that you’re distracted by your date (it’s my hypothetical, so we’re out with Mythbuster Kari Byron) you don’t realize that the dish was bad.  You get lucky, go home with Kari, and yadda yadda yadda, you wake up around 3:00am violently crapping your pants.

You clean yourself up, pray you don’t run into anyone in the elevator while taking your mattress pad down to the laundry room, and as soon as 8:00am rolls around, you call your doctor and beg her to see you.  If it sounds like I’m a little too familiar with how this goes, yeah…well, that’s beside the point.

After seeing your doctor, you learn that you almost certainly ingested some bad dairy in the last 24 hours.  Well, pretty easy to narrow down the likely culprit. So, you call up Jaydee’s Ristorante and complain about getting sick from your chicken alfredo, but instead of trying to make it right by refunding the cost of your meal, picking up the co-pay on your doctor visit, or any other decent response, the chef at the restaurant insists that maybe the sauce needs a little tweaking, but it’s generally fine and certainly isn’t going to make anyone evacuate their bowels in their sleep.

How pissed off would you be?  How much would you trust the chef’s opinion on the quality of the food while you’re putting your (thankfully) salvaged mattress pad back on the bed?

Obviously (unless you’re new to this blog) this is a metaphor about law schools.

What should be the appropriate response from the legal academy when hordes of law students graduate and find that their degree is virtually unmarketable?  And, not just students who went to forth tier diploma mills, but students who went to T1 and T2 schools and got decent grades, like this girl, who works for $7.50/hr at a coffee shop to pay the bills:

[h/t Jobless Juris Doctor]

As I mentioned yesterday, I e-mailed several of the professors involved in the Theory v. Practice debate over on the Prawf’s Blawg, saying that the professors need to pay more (or any) attention to what their recent graduates actually thought of their legal education.  Two of the professors responded by e-mail.

First, Richard Garnett (Notre Dame),

Dear [BL1Y],

Thanks for writing.  I am sure that all of us with whom you shared these thoughts do, in fact, talk often and in depth with our former students, and with other young lawyers, about their experiences, both in law school and in the profession.  And, I am pretty sure that we all know about and appreciate the realities that clinical slots are hard to get into, etc.

You say, at one point, that “[t]oo many professors pass the buck when it comes to skills training, saying that the best place to learn black letter law and develop skills is on the job, and the class room is simply better suited to teaching theory.”  If that’s been your experience, then I think that’s too bad.  But I don’t know many, let alone “too many”, who think that learning “black letter law” ought not to be among the aims of a law-school classroom.

Best wishes,


And then a response from Kristen Holmquist (Drake),

Dear [BL1Y],

Thanks for your thoughts.  Like Professor Garnett, I’ll just note that I am in constant contact with recent grads.  And that some of my work actually relies on a pretty immense study of what not only recent, but long-practicing and expert lawyers think about lawyering entails. And it’s difficult to disagree with your points here – of course we should have more practice-oriented writing opportunities for students, for example.

Saw your blog.  Interesting take.

Take care,


After receiving these responses, I decided to take a quick survey of the other young lawyers I keep in touch with, asking whether anyone at their school had contacted them to get their take on their legal education.  This will come as no surprise to my readers, none of them had heard a peep from old professors.  But, I will admit I only asked a small number of people, so I figured I throw a poll on here and hear back from you guys.

Since graduating, has your law school contacted you?

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Paul Horwitz (Alabama, RMFT) also responded via blog comment, and I won’t repost the whole thing here as it is (and he admits) non-substantive.  But, I do want to include this bit:

[...] 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,

Remember that chef that told you the sauce that made you violently ill is mostly okay, and maybe just needs a minor adjustment?  Remember how pissed off that would have made you?

I don’t know about you, but when I spend over $100,000 on law school only to wake up in the middle of the night and find I’d just crapped out my future, I’m willing to put “radical overhaul” on the table.

Moving on, there was a comment in response to one of Horwitz’s posts on the Prawfs Blawg that’s interesting.  This one comes from Orin Kerr (George Washington U.):

I would add that to the extent we think legal education needs to change either to become more practical, or more international, or more theoretical, or more whatever-ical, there is a very straightfoward way to do that: Through electives. In most law schools, only the first year is required. Students then face a choice about how they want to take for their 2L and 3L years, and generally speaking, they can specialize however they want. They can take clinicals; theory classes; classes on trial practice; classes on legal history; classes on doctrine; etc. If students start to take certain kinds of elective courses instead of others, because they realize that they need certain skills or perspectives for whatever reason, legal education will change to accommodate them.

Yes, Kerr is correct that law schools do need to offer a wide variety of  electives so that students can tailor their education to their career plans.  Where he goes wrong is his conclusion that the present assortment of electives generally means you can pick the classes you want.

Of course, those of us who have been law students recently know there’s more to it than that.  Schools don’t have elaborate lottery systems because it’s so easy to specialize however you want.  Students aren’t able to sell seats in over-enrolled classes for hundreds of dollars because everyone’s satisfied with their schedule.

It’s generally pretty hard to get many classes you want second year, because third year students at most schools get priority.  So, you only have one year to cram in all the really good stuff.  If the classes you were dying to take are only offered every other year, you’re out of luck.  If there’s a scheduling conflict, you’re also out of luck.  If there’s a prerequisite you had better hope you did some careful planning your 2L year and didn’t change your mind about anything.  And of course, there’s the mother of all things stopping you from getting the classes you want: they aren’t ever offered.

Want to take a class on drafting contracts, or drafting wills?  You can’t at NYU.  Ever.  Sorry.

So, as an experiment, I’ve decided to look for 3 different classes at NYU and each of the 5 schools represented by the professors I have mentioned recently.  The classes are contracts drafting, wills drafting, and private equity deals.  And, the class must be offered in the next year, either Fall 2010 or Spring 2011.  I’ll try to give a fair look at each school’s curriculum, but I admit I might miss something, so please let me know if I made a mistake.


Contracts Drafting: No
Wills Drafting: No
Private Equity: No

Instead You Can Take: Image of God in Jewish Law and Philosophy

Notre Dame

Contracts Drafting: No
Wills Drafting: Yes (as part of Poverty Law Topics: The Planning and Drafting of Wills and Trusts)
Private Equity: No

Instead You Can Take: Perspectives on Individual, Family, and Social Institutions


Contracts Drafting: No
Wills Drafting: Yes* (Will Drafting Seminar; 1 prereq, so plan ahead)
Private Equity: No

Instead You Can Take: Survey of Australian Law

*The description of Decedents Estates, Trusts, and Fiduciary Obligation states that class covers drafting techniques, but this is not reflected in the syllabus and there is no graded drafting exercise.  Estate Planning also says students will gain some experience in drafting, but since Decedents Eststes’s syllabus contracted the course description, we can’t be too sure Estate Planning’s description is accurate on this point. (No syllabus was available for Estate Planning.)

UC Berkeley

Contracts Drafting: Partially* (In Drafting Legal Documents for New Businesses)
Wills Drafting: No
Private Equity: No

Instead You Can Take: The Ethnography of Institutions

*Contracts are only a small part of the class, which focuses instead of corporate formation, charters, and bylaws. This is actually a class I would have been very interested in, but it’s not what we were looking for in this experiment.


Contracts Drafting: Yes (Contract Drafting)
Wills Drafting: Yes (Will Drafting for the General Practitioner)
Private Equity: No

Instead You Can Take: Bar Exam Preparation

George Washington

Contracts Drafting: Partially* (in Legal Drafting)
Wills Drafting: Partially* (also in Legal Drafting)
Private Equity:

Instead You Can Take: Law of Race and Slavery (If the Slaughter-House Cases ever get challenged, you’ll be the go-to expert!)

*Legal drafting covers drafting of pleadings, motions, contracts, deeds, wills, and other documents. All this is crammed into a 2 credit class.

In Conclusion

A few question:

Are law schools really acknowledging the opinions of the people who are in the best position to know if law school prepared them to be lawyers (aka: recent grads)?

For the six figure tuition students are paying, and the six figure salaries (full) professors earn, should the schools be more willing to remake a dish that went bad, or offer a substitute or a refund?

Should professors recognize that even though they are not subject to the whim of their students, they are ultimately in a service industry, and should be less concerned with the prestige of journals that publish quality of their scholarship, and more concerned with their fraudulent employment data actual student outcomes?

And, does anyone actually believe that Professors Garnett and Holmquist are really in regular contact with the average graduates of their law schools, and not just stockholm syndrome fanboys a self-selecting group of people with good enough experience that they want to stay in touch?

I would say “you be the judge,” but really, who’s going to elect or appoint you with that gaping hole in your employment history?

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Rarely is the question asked: Is our law students learning?

Posted in Uncategorized on August 30th, 2010 by bl1y

When you graduated, did you feel competent to practice law?

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Over at the Prawf’s Blawg there has been a bit of a debate over the value of “doctrinal” and “theoretical” legal education taught by mainly academic, non-practitioner professors.  First, Brent Newton (Adjunct Professor at GULC and Washington College of Law, and deputy staff director for the US Sentencing Commission) published an article titled Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, and then a bunch of professors decided to weigh in.

Newton’s thesis can be summed up by two main points.

First, many law professors are unqualified to train attorneys:

Such impractical scholars, because they have little or no experience in the legal profession and further because they have been hired primarily to write law review articles rather than primarily to teach, lack the skill set necessary to teach students how to become competent, ethical practitioners.

And second, that recent grads are really screwed by this lack of training:

The recent economic recession, which did not spare the legal profession, has made the complaints about American law schools’ failure to prepare law students to enter the legal profession even more compelling; law firms no longer can afford to hire entry-level attorneys who lack the basic skills required to practice law effectively.

Then, Richard Garnett (Associate Dean at Notre Dame Law) posted a response to the article here. You can read the whole thing if you want, but here’s the gist of it [and sense many of the comments and posts in this discussion are quite lengthy, assume everything I quote here is just a excerpt]:

It is essential that law schools provide, value, and reward the best possible legal-skills training to those students we are training to become lawyers.  But, it is also essential to remember — those in the practice who are criticizing legal education need to remember — that we are not only “training lawyers”; we are also forming professionals: citizen-leaders and teachers who play a vital role in the project of securing and defending the rule of law in the service of the common good, as well as in helping people avoid and solve technical legal problems.

Ian Bartrum (Assistant Professor at Drake) added his two cents in the comments:

I think that the most effective practical education will inevitably happen on the job, where necessity and repetition reinforce the everyday skills that a particular career path requires. Law practice is thus particularly suited to provide technical training, but perhaps not as well suited to teaching the kind of abstract skills learned in the classroom. That is the opportunity that law school provides. And there is nothing wrong with that, to my mind. We simply learn one part of lawyering in school and another part on the job.

Kristen Holmquist (Resident Lecturer at UC Berkeley) then posted a draft of a paper on this subject.  Here’s the abstract:

Since the 2007 release of the Carnegie Report on the status of legal education, energy around reform has been tremendous. Indeed, schools of every rank have taken heed of the Report’s finding that while law school teaches students to think like lawyers, it woefully underprepares them to act as such. This essay challenges Carnegie and its conclusion that law school successfully teaches lawyerly thinking. The Report artificially severs an attorney’s thinking from her doing and thus belies the interrelatedness of understanding, experience, evaluating and creating. It defines ‘thinking like a lawyer’ downward to a crisp and detached doctrinal analysis – one that looks more like law-as-puzzle than a serious attempt to solve complex human (or corporate) problems. This narrow view obscures the context and content that lawyers work with and within, and it fails to reflect the more complex take on lawyering that lawyers and lawyering theorists describe. Sophisticated empirical and theoretical accounts of lawyering recognize the recursive nature of knowledge and experience in a way that broadens our understanding of what it means to think like a lawyer.

Through this essay I attempt to fold context and content back in to our notion of lawyerly thinking. And I propose curricular and pedagogical changes that law schools might adopt to better reflect and encourage this richer, fatter, understanding. While it is true that students’ lack of practical training may deny them the ability to write a fantastic brief, legal education’s problems are bigger than that. Law school’s consistent focus on case-method learning may also deny students the opportunity to engage in higher-order thinking about law and policy, about problems and goals, about potential paths, obstructions, and solutions.

Having trouble making sense of that? Me too. It’s a lot of that fashionable, progressive, airy double-speak that tends to be the hallmark of contemporary academia because, apparently, using words in their ordinary manner and in easily comprehensible ways is way overrated.  But, to cut through the ivory fat for you, here’s the point of her paper:

Law students need more experience that resembles actual legal work.

Why did it take 39 pages to make that argument? Because law journals don’t publish one-liners, and you can’t build a CV with unpublished articles, no matter how clear and succinct your reasoning is.

Then we get a very lengthy post from Paul Horwitz (Associate Professor, Alabama, RMFT):

[O]ur discussion of the practice vs. theory, or experienced vs. inexperienced, debate in the law schools should not ignore the huge stock of very experienced and skilled practitioners who already fill our law schools at all levels.  Most law schools already take tremendous advantage of both adjunct teachers and clinicians.  (The ambiguity in the phrase “take tremendous advantage” is intended!)  Students with a strong practical bent already have a ready supply of teachers who fit that bill, and many of them avail themselves of those opportunities.

So, now I guess I’ll weigh in.

First, let’s note that Richard Garnett, Ian Bartrum, and Paul Horwitz are each completely lacking in practice experience, at least as far as their faculty profiles would indicate. So, we’re not talking about highly informed opinions when it comes to what lawyers do and what they need to know to do it. It’s very hard to understand what thinking like a lawyer is when you’ve never thought as a lawyer.

Kristen Holmquist has worked as an associate at Irwell and Manella, and then at Caldwell, with a total of about 5-6 years as a practicing attorney. She might know what she’s talking about, if only it wasn’t so hard to understand her writing (as a former practitioner, I’m just going to assume her writing style and language are just a result of the publication game).

But, among all of these people writing about whether lawyers are prepared to enter the work force, none of them asks a very simple, obvious question: What do recent grads and young lawyers think?

If there’s anyone qualified to answer whether or not their legal training prepared them to be competent attorneys it’s the attorneys.  Some may feel over confident in their skills, but for the most part a recent grad who’s been asked to analyze a private equity deal between a US corporation and its Cayman Island partner will know whether he’s completely lost or not.

Instead of getting into highly theoretical debates about what “thinking like a lawyer” entails, why not ask the students what they found useful, what turned out to be a complete waste, and what they wish they had taken or wish they had the opportunity to take?

To get the ball rolling, here are my thoughts:

(1) Despite what law professors will tell you about the “opportunities” to take experiential classes (clinics and the like), most of these classes are extremely competitive to get in to. These opportunities exist only for a small fraction of students, not for everyone who wants them. Law professors tend to ignore class lotteries and the possibility of scheduling conflicts when touting the opportunities their school offers.

(2) Upper level writing classes are pretty much nonexistent. You may do some writing in moot court (if you can get in), but that’s about it.  Legal research and writing classes (or “lawyering” if you’re fancy) should be a requirement every semester, not just the first year.  They could be scaled back credit hour wise, maybe making them a 1 credit per semester class. This would allow for students to continue getting feedback on writing once they have a basic grasp on some law (first year you’re often too overwhelmed by the law to really focus on writing), and you would get the opportunity to work with different professors with (hopefully) different practice backgrounds.

(3) Upper level non-litigation skills classes are also pretty much nonexistent. We had negotiations, and alternative dispute resolution (and I managed to get into both), but these aren’t really skills that are going to be put into use by your average corporate department junior or mid-level associate.  It’s usually the client doing the negotiating, and if lawyers are present, it’s not the junior kid. These classes would however have been useful to students going to work in a small firm’s family law practice. But, for the huge number of us who are going into corporate work, there’s not really any options for skills training.

(4) Too many professors pass the buck when it comes to skills training, saying that the best place to learn black letter law and develop skills is on the job, and the class room is simply better suited to teaching theory.  There are two problems with this.  First, any meaningful discussion about the big picture stuff, social policy and all that, requires a working knowledge of the underlying black letter law and the real world dynamics that frame the debate. You know where I heard the most intelligent social policy discussions? Law firm practice group meetings. The partners could talk about what new rules would really mean for clients and for the public, because they were in actual contact with clients dealing with these issues.

But, more importantly, law professors must come to terms with the fact that many of their graduates do not have the opportunity to learn on the job.  There are far fewer opportunities to work at law firms of any size, and many grads are forced to enter whatever practice area happens to be hiring, meaning their training will be of little use to them if they ever want to move in to their preferred area. And, a growing number of young lawyers are finding that their only opportunity to gain “on the job training” is to hang up a shingle and work for themselves in a solo practice.  The truth of the matter is that law grads are expected to hit the ground running on day one. Yes, no one expects them to be industry experts yet, but when you’re billing $100-300 an hour, it’s too late to only be starting your training.

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