Super high paying, easy job? I think I saw one of those around here…

Posted in Uncategorized on December 6th, 2010 by bl1y

Many of you have probably already read the letter a 1L student sent to ATL asking whether he should drop out after his first semester, before racking up even more debt (another $21,000 to finish out the year).

Fewer of you will have read the introductory post by Professor Mariam Albert (Hofstra) over at the Prawfs’ Blawg.  She addresses the issue of students dropping out after one semester, which is to say she addresses it like an academic. She mentions it’s something some people consider, but provides no real insight in to the issue.  And then the post goes down hill.

Here is how she described the ATL 1L contemplating throwing in the towel:

This student seems to be more considered with the ultimate cost/benefit disparity between his likely massive law school debt and unlikely prospects of a super high paying and easy job [where can I get that gig, by the way, because it sounds good to me].

If you didn’t read the 1L’s letter to ATL, scroll up, click the link, and read it now.  If you did already read it, scroll up, click the link, and read it again. This includes you too, Ms. Albert.

I think I know my readership well enough to know you’re not actually going to go read the articles (WordPress tracks what you guys click on, by the way), so here’s the relevant part of the 1L’s letter where he talks about job prospects:

I know that if you want to suceed at anything, you may have to sacrifice work-life balance. However, from what I understand, private practice is an exercise in the permanent sacrifice of work-life balance. Late nights at the office every week or two is very different from working 12 hours every day. It’s very unlikely I’ll be able to make good money in private practice and have a healthy work-life balance. I don’t want to work 60-70 hours a week until I’m 40. The psychological and physical costs of this lifestyle are real and don’t typically fit well alongside goals of having a happy life outside the office.

Somehow, the phrase “good money” got interpreted by Professor Albert as “super high paying.” Not just high paying, but super high paying.  Maybe the kid just thinks of “good” the same way many struggling graduates do, a job that will allow you to pay all of your bills in the same month. Of course, it’s possible he considers “good money” to be nothing less than $160,000 a year, with a hefty bonus on top, but there’s not really anything in his letter to indicate that.

Now let’s look at the article part of Professor Albert’s take on the letter, that he wants a job that’s “easy.”

The kid certainly doesn’t say he wants an easy job. What he says is that he doesn’t want a job that’s going to demand 60-70 hours every week from him until he’s 40. (And a little note to the youngins out there, if at 40 you’re no longer putting in 60-70 hours, it’s because you were promoted to service partner and are now putting in 90-110).

All he’s asking for is a job that leaves some opportunity to have a life outside of law. There is a middle ground between easy and insanely life-consuming.  I mean, in theory this is.  In reality the options are to set up a cot in your office or hit the bread line. But, let’s not deny a kid the mere opportunity to dream about having a life worth living. There’s plenty of time in the future for him to be crushed by reality.

And, the reality is that the situation isn’t going to improve for 1Ls trying to decide whether sticking with law school is worth it. Many professors simply don’t care about the welfare of their students.

My first semester torts professor turned in her grades well past the deadline (and if you think NFL player fines are pitifully low, consider that there’s no real penalty for missing the grades deadline).  She had turned in grades that did not meet the school’s mandatory curve.  It’s a pretty straight forward process. Figure out percentage of the class got what grades, see if it fits.  You’d think a professor of law would be able to handle following simple rules.

But really, what’s the problem, right? You get your grades a few weeks later than other people, no biggie.  Except when it comes to looking for jobs. It was first semester, and our legal research and writing class was pass/fail. That means we only had 2 grades on our transcript until we got ours for torts, and it’s really hard to get an interview with an incomplete set of grades.  Being a few weeks behind everyone else means that many fewer interview slots are available, and some jobs have already been filled.

Exams ended December 22nd (I don’t recall the date of the Torts exam, but that’s the end of the entire exam period), and grades were due January 20th.  That’s only 5 exams a day, …if you waited until New Years to get started.  If you spent 30 minutes per exam, and worked one 60 hour week, you would finish before even hitting that 60 hour mark.  You really have to try to miss the deadline.

Of course, Professor Albert doesn’t fall in to the “doesn’t care so little about her students she may have wrecked their careers because she spent too much time watching old Humphrey Bogart movies” category. The fact that she wrote about the dilemma many 1L students face over the prospect of dropping out shows that she is concerned.

No, Professor Albert falls in to a completely different category, the people who imagine law students to be nothing buy whining, entitled brats based on absolutely no evidence.

Wait, sorry, it’s worse. Professor Albert, with a complete lack of evidence that this student want either a “super high paying” or “easy” job, declares this must be his main concern on a the freaking Prawfs’ Blawg. And it’s in her introductory post there! Cripes! You’d think you’d want to make a good impression rather than completely misrepresenting the intentions of a 1L going through what will probably be the most difficult decision of his young adult life.


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Posted in Uncategorized on September 25th, 2010 by bl1y

Over at the Prawf’s Blawg this week, there have been a couple of posts (uno and dos) discussing whether professors should answer should answer substantive questions over e-mail.  And, if you know professors, you can expect that many will balk at the idea of doing any sort of extra work, especially if that extra work involves something other than simply answering a question with a question and telling students it’s their job to teach themselves the law.

Professor Glenn Cohen had this to say about giving substantive answers via e-mail:

I specifically tell students that I do not do substantive questions over emails. I do so for 3 reasons: (1) I get 60 to 100 emails a day without substantive questions, and I worry that I’ll miss substantive questions over email in the shuffle. (2) Office hours are important as actually offering an opportunity to get to know the students on a personal level, which is essential for me when I write letters of recommendation. (3) Perhaps it is the subjects I teach, esp Civil Procedure, but I find the staccato iteration of questions and answers over email is likely to lead to confusion, or at least incompleteness. I’d rather talk through the question with the student to determine what is really afoot, including underlying premises that are off that might not be detectable by the simple email back and forth. I also live in fear that I’ll accidentally screw up an FRCP number or the like in a quick email and get it cut and pasted back into my final exam, and be in a quandary about how to grade it later on. Such mistakes may happen in face-to-face communications as well, to be sure, but I am more confident I can detect it in real time the conversation.
Obviously emails would be quicker for the students and make them more likely to ask more questions. Whether that is a benefit or not depends on some elements of one’s own pedagogical theory, i.e., how much you want students to try and work through their own questions and pare them down versus have easy and constant access to the professor. In my own view the benefits of face-to-face office hours are large enough that I would rather just schedule more of them to be accessible than shift to email questions.

Professor Jason Mazzone (Brooklyn) also gives his reasons for spending the evening watching …whatever TV show is popular with law professors.  Jersey Shore, I guess:

I don’t answer substantive questions by e-mail and if I get them I ask the student to come and see me. This is for three reasons. (1) I have found that unless the student is really on top of things, e-mail exchanges are not pedagogically effective. Often a student isn’t asking quite what the e-mail suggests the student is asking and therefore the answer can create greater confusion. These risks are much lower in a face-to-face exchange where clarifying questions can be asked and a student’s puzzled look observed. (2) I can talk much faster than I can type and so I can answer many more questions in person. (3) Because e-mail is costless, it leads students to think of the professor as the first resource for an answer.

Anyone who has practiced law in the last 10 years can tell you that it is not unusual for a lawyer to receive a question by e-mail and be required to give a substantive response by e-mail.  Anyone practicing in the last 5 years has probably had to give a substantive answer by Blackberry, and is expected to be available for a response at all hours.

Yes, it is true that a face-to-face conversation will probably lead to a better understanding of both the confusion of the student and the answer from the professor.  But, lawyers out in the real world often don’t have the luxury of telling a partner or a client to stop by during office hours later in the week.  We have to figure out what the issue really is, give the answer, and give it such a way that anticipates the person on the other end misunderstanding it.

Electronic communication is a growing part of the legal practice, and with it comes new issues, new problems, and new opportunities.  If a professor refuses to give substantive answers by e-mail, they are not engaging in the real thought processes lawyers deal with, and that should raise serious doubts about their ability to teach others to think like a lawyer.

Perhaps it’s time for an updated version of The Paper Chase:

You teach yourselves the law, but I collect the paycheck. You come in here with a skull full of mush and, if you go the extra mile to teach yourself practical skills in your spare time, you leave thinking like a lawyer.

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

Posted in Uncategorized on August 31st, 2010 by bl1y

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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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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Marc DeGirolami Doesn’t Get Enough Attention in Class

Posted in Uncategorized on June 18th, 2010 by bl1y

Over the the PrawfsBlawg, there’s this piece from Howard Wasserman, an associate professor of law at Florida International University. The blog post discusses two trends in reforming legal education (or, more likely, discussing reform without actually reforming anything); the trends are “Best Practices” (adding experiential learning) and “Student Centeredness” (focusing on student needs).

The article itself is fairly uninteresting, but one of the comment is pretty retarded:

One of the many puzzling things about the “best practices” recommendations is that they simultaneously advocate “professionalism” and “values” education right alongside skills training in the more mechanical components of legal practice. The idea seems to be that one becomes a professional — and a professionally minded person who has internalized the profession’s values — exactly by becoming technically proficient, more fluid at processing discovery, more knowledgeable about filing requirements, and so on. The marriage of these two ideas looks to produce something like the ethic of the technician as the ne plus ultra — a fully bureaucratized professionalism. I wonder if the best practices cadre had Judge Posner’s thoughts about professionalism in mind when they issued their recommendations, or if the similarities are unintentional.

As for student-centeredness, maybe we ought to be thinking about teacher-centeredness. The model of student-centeredness presupposes that there is exactly one right way to teach any law school class — one sort of thing that students want, a thing that teachers ought to be giving them. I do not think that learning goes on this way (unless one thinks that the delivery of data is the same thing as learning). Teachers have different strengths and weaknesses, and students will miss out on a unique kind of learning experience if a teacher is not able to tailor a program of instruction to his or her strengths. Each civ pro course may not be entirely unique, but teachers ought to be encouraged to incorporate their own substantive and stylistic strengths to shape any given civ pro course. The model of student-centeredness flattens courses in what is likely to be an intellectually stifling manner.

That comment is from Marc DeGirolami, an assistant professor of law at St. John’s.  It is also complete bullshit.

The model of student-centeredness does not presuppose there is only one way to teach a class.  I had a logic class in udnergrad that was most self-study in a computer lab with a few floating TAs to help you when you got lost, and I had an upper level creative writing workshop that involved sitting at a table and being criticized by your classmates for the better part of an hour.  Both were student centered, but were night and day different.

While there is not one sort of thing every student wants, there is one thing that 90-95% of the students want to get from their law school classes.  They would like to graduate as minimally competent attorneys.  That means training them in the knowledge and skills that they will need.  Yes, all teachers are different, and everyone has their own teaching style, but that doesn’t mean that reading pleadings and having a drafting exercise shouldn’t be the norm for a civil procedure class.  If you can’t do that because your weakness is you’re terrible at drafting or analyzing pleadings, you probably need to rethink your career.

Yes, professors should be encouraged to incorporate their own stylistic and substantive strengths.  But, offering nothing of value to your students is not a legitimate teaching style.  If you don’t understand mechanical things such as discovery, that’s not an excuse to only teach theory. Get up off your ass and learn the basics of the subject matter you’re teaching.

Or, as I previously wrote in response to Pace University professor Bridget Crawford’s asinine ramblings on legal academia:

1. If you don’t teach your students knowledge or skills that will be of practical value when they enter the work force, then

2. Get the fuck out.

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