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?

View Results

Loading ... Loading ...

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?

Tags: , , , , , , , , , ,