January 15, 2012
Chen: The Better Angels of Our Profession
Law professors across the country have reacted rather strongly to the New York Times' series, particularly Segal's article on law faculty hiring and the staff editorial demanding law school reform. Those reactions have fallen into three broad categories. Elisabeth Kübler-Ross would be proud: Faced with this challenge to their dignity and their raison d'être, law professors collectively have covered nearly the entire emotional range of the grieving process. Some have reacted with denial and anger. Others actively try to bargain with other branches of the legal profession. Still others, albeit with some measure of depression, have done their best to accept appropriate criticism and to begin framing some form of meaningful, constructive response.
Let me begin with the angry deniers. For my part, I do not believe that law professors and law schools do themselves any favors, in an age of indebted students, unemployed law school graduates, and laid-off lawyers, to trash these criticisms as a "hatchet job" or (better yet) a "bile pile." It takes a deep measure of cynicism, perhaps even petty selfishness, to characterize the Times as being motivated by their writers and editors failing to get relatives into law school or past the bar exam. A second, less angry cohort of law professors fervently wants to believe that tough times in the legal profession are merely cyclical. Wait a year or two or five, so the wishing goes, and things will be back to the way they always were.
Count me in the third camp. The criticisms are real. They sting. All of us, from law schools and law students to lawyers and law firms, have to do something. Things could, things should be better. ...
As serendipity would have it, the entire episode coincided with my discovery of psychologist Steven Pinker's latest book, The Better Angels of Our Nature: Why Violence Has Declined. There is a single gem of wisdom in Pinker's book that seems particularly pertinent to this controversy. Pinker reports, on the basis of deep knowledge about human pyschology, that people systematically overestimate their own grievances and underestimate the pain borne by others. This bias transcends the notion that the grass is always greener on the other side of the fence. It's the regrettable tendency that we all have: believing that our grass alone is brown, and it's the fault of all our neighbors. ...
The hard truth is that law schools could stand to act more like law firms, paying closer heed to what lawyers actually do for a living. Law firms could stand to to act more like law schools, absorbing the cost and the responsibility of training their new recruits instead of expecting law professors to know skills best perfected far from the classroom. Law students would be well served to take a hard, financially sophisticated look at the out-of-pocket and opportunity costs of legal education, to say nothing of the strictly pecuniary returns on their investments in personal capital. The Socratic method and the parsing of written appellate opinions have a firm place in law school. But law schools and bar examiners and hiring partners should all work together to reconsider why and how we teach certain things. Sheer age and force of habit are terrible excuses for doing anything, much less forcing aspiring members of our profession to endure a three-year ordeal. The relative cheapness of traditional lecturing explains why it's more prevalent than hand-to-hand clinical teaching, but cost alone sheds at best incomplete light on the value of practical as well as intellectual training in law school. And no one, inside or outside the academy, has ever found the perfect way to convey subtle skills that arise over the course of a lifetime of professional activities and interpersonal relationships.
We have to start somewhere. Perhaps we can begin by admitting that everyone is in pain. Law students are in debt. Law schools face budget cuts. Law firms are enduring layoffs and lower per-partner payouts. For once, we might acknowledge that all of us have grievances, that our own complaints may be no more pressing than those of our companions. Fingers we have been too quick to point might yet touch what Abraham Lincoln called the mystic chords of memory — strings that can be struck only by the better angels of our profession.
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Perhaps "Law firms are enduring layoffs and lower per-partner payouts" might suggest that the previous per-partner payouts might have been a tad too high.
Posted by: Shag from Brookline | Jan 16, 2012 6:54:43 AM
Saying law firms should bear some cost of education assumes every lawyer will be hired by a big firm. Many go into solo practice. They should be prepared to do so by law school. Not just prepared to write memos. This is what made me so mad about my top 15 law school. It graduated me with no idea how to practice law.
Posted by: MarkInFla | Jan 16, 2012 11:01:51 AM
Wow, great post. You usually have to define the problem before you can find an acceptable solution.
Posted by: Anon | Jan 16, 2012 11:42:21 AM
so funny how the dean gets it all wrong -- he admits that the skills of a lawyer are something professors know little about, but seems to think that's the law firm's problem, rather than the school's problem. shouldn't the people purportedly teaching students how to be lawyers know how to be lawyers themselves?
Posted by: superflat | Jan 16, 2012 8:28:17 PM
I need a little help here, Dean Chen. Why should law firms bear any cost of educating of lawyers? Law firms' revenue comes directly from consumers of legal services. Why should consumers of legal services pay for educating lawyers? I am a little lost here.
Bottom line: the existing cohort of law professors is about twice as large in number as it should be. Why? Academic/inter-disciplinary law professors do a fair-to-good job of teaching doctrinal courses. They do a very poor job, or none at all, of teaching practical skills. The first three semesters of law school should be doctrinally focused. The last three semesters should be oriented toward practice, whether transactional practice, litigation practice, or general practice. Thus, about half of the existing law professors are superfluous and should be replaced by practice-oriented professors.
Posted by: Publius Novus | Jan 17, 2012 4:16:58 PM