TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Sunday, November 10, 2013

Konefsky & Sullivan: The Winter Of Our Discontent: Legal Practice, Legal Education, and the Culture of Distrust

WinterAlfred S. Konefsky (SUNY-Buffalo) & Barry Sullivan (Loyola-Chicago), In This, the Winter of Our Discontent: Legal Practice, Legal Education, and the Culture of Distrust, 62 Buff. L. Rev. ___ (2014):

This essay seeks to situate the challenges facing legal education within the broader context of professional culture — a context that seems to us to have been neglected in the present debates. In a sense, the “market reformers” have been swept up, consciously or not, in a wider movement that elevates markets over other forms of social analysis and therefore asserts and takes for granted what is in fact deeply contested. More specifically, they have pushed to the side the public-serving dimension of the lawyer’s role because it allegedly conflicts with the psychology of classical economic liberalism. Our aim, then, is to restore the concept of the public domain to a discussion now dominated by mere considerations of costs and a belief in the inevitable triumph of a narrowed sense of professional culture. Before we can begin to reform the infrastructures of legal education, we need to identify the function of the legal profession in a democratic society and the role that a legal education might play in preparing men and women for service in a profession so conceived. In that sense, cost is not an independent variable, and any judgment about the cost-effectiveness of legal education necessarily depends on a decision concerning the purposes to be served by a legal education.

In Part I, we discuss, in a general way, some of the changes that have occurred in society, the profession, and legal education in the past 40 years or so. We are particularly interested in the growing tendency to re-conceptualize many social phenomena in market terms and the effects of this trend on legal education and the practice of law. In Part II, we continue our discussion of those themes, as they relate to the current debate over the future of legal education, by considering the analyses of Thomas D. Morgan and Brian Z. Tamanaha, both of whom approach the problem from the vantage point of economic analysis. Notwithstanding the similarities in their methodologies, their respective prescriptions point in somewhat different directions. We suggest that a broader view is necessary and that the work of these commentators and others suffers from a failure to give sufficient attention to the public dimension and significance of the legal profession. In Part III, we endeavor to reframe the problem in a way that may be useful in developing a forward-looking approach to accomplishing the reforms that are necessary.

Legal Education, Scholarship | Permalink


It's encouraging to see people hitting back.

Posted by: michael livingston | Nov 10, 2013 3:18:07 AM

I very much look forward to reading this piece. It's so refreshing--and appropriate, in my humble opinion--to finally see a piece on legal education and law practice that treats both in their public and professional contexts, not as commodities in markets. I don't care how hackneyed or idealistic it sounds, but no matter how society or the economy or businesses evolve or change, law must remain a profession, not a business. And the more we can treat and think about law as a profession and a public commodity, not a business and private commodity, the better off we all will be.

Posted by: Ben Bratman | Nov 10, 2013 6:44:01 AM

The salient analysis is not through the lens of the market, but through the eyes of market failure. Were it not for distortions caused by student loans, there would be no overpopulation of law schools and the price of tuition would bear some relation to outcome. It does not do so currently.

Right now, law school cadillacs, chevys, yugos, and used bicycles cost roughly the same. Why? Because federal policy allows anyone with a pulse to get a loan for the full amount of attendance. Used bicycle and yugo purchasers do not experience the pain of their purchase because of IBR and PAYE. The invisible hand has been gloved by federal policy.

Posted by: Bobby Dobb | Nov 11, 2013 8:08:51 AM