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

Monday, June 27, 2016

Posner:  Why Don't Law Professors Have Practical Experience These Days?

Slate (Supreme Court Breakfast Table Series): Why Don't Law School Professors Have Practical Experience These Days?, by Richard Posner (Judge, U.S. Court of Appeals for the 7th Circuit):

Entry 9: The Academy Is Out Of Its Depth:

[T]here's a growing gap between judges (including the Supreme Court justices) and the academy, which judges tend to think is increasingly distant from the actual practice of law, staffed as it increasingly is with refugees from other disciplines—the graduate students in classics, and history, and anthropology, and so on who upon discovering there were very few well-paying positions in such fields nowadays decided to go to law school and afterward had no time to practice law before getting a law-teaching job.

I think law schools should be hiring a higher percentage of lawyers with significant practical experience. I think, for example, of Benjamin Kaplan at Harvard Law School, who went into law-teaching after 14 years in practice. There used to be many like that; there are many fewer now, especially at the leading law schools.

On a different subject, I worry that law professors are too respectful of the Supreme Court, in part perhaps because they don't want to spoil the chances of their students to obtain Supreme Court clerkships. I think the Supreme Court is at a nadir. The justices are far too uniform in background, and I don’t think there are any real stars among them; the last real star, Robert Jackson, died more than 60 years ago. I regard the posthumous encomia for Scalia as absurd. Especially those of Harvard Law School Dean Martha Minow and Justice Elena Kagan.

Update:  Paul Horwitz (Alabama), Posner is Much More Right Than Wrong

http://taxprof.typepad.com/taxprof_blog/2016/06/posnerwhy-dont-law-professors-have-practical-experience-these-days.html

Legal Education | Permalink

Comments

Papa Posner's critique about relatively inexperienced lawprofs might be said to apply to himself. As a baby lawprof, he then had about 6 years legal experience before becoming a law professor. His son Eric became a lawprof after only a 1-year clerkship and 1-year stint at OLC. The legal profession would be a much less rich place without the benefit of Professor Richard Posner. Same can be said of Eric -- brilliant, very productive and taken seriously by jurists. Both Richard and Eric would seem to be case-in-point rebuttals to Papa Posner's overheated critique. Surely Posner should be happy to have more PhD economists within the legal academy who can actually use data to test his many a priori cerebrations about hypothesized incentives of various legal rules! His critique about the value of PhDs in law schools seems carelessly overbroad.

Posted by: TS | Jun 27, 2016 1:45:21 PM

@TS!

Six years of of practice is about 4.4 years longer than most recent prawf hires have.

Posted by: Unemployed Northeastern | Jun 27, 2016 2:43:12 PM

Most attorneys have not published anything because they lack the time. After a full day in court and begging people to pay fees, most attorneys are wiped out. Apparently, interpersonal and practice skills are not valued as much as academic skills to many law schools.

Posted by: Captain Hruska Carswell, Continuance King | Jun 27, 2016 5:01:44 PM

"If current hiring trends continue, a majority of the members of top twenty-six law faculties will hold Ph.D.s by 2028, and a large majority of them will have no experience in law practice." Lynn M. LoPucki, "Dawn of the Discipline-Based Law Faculty," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2663614

Even without going into the reality that in the in law in particular and among employers in general, the 21st century consensus is that higher education is strictly a private good for their own benefit such that they can axe their employee training programs and foist those costs off on higher education, it seems desperately idiotic to have the nation's *top* law students be taught primarily by "law professors" who have never practiced law. After all, it's not as if clients are increasingly taking their erasers to junior associate billing or farming out that sort of entry-level legal work to alternate legal service providers (or simply doing it in-house). Nay, it is the epitome of wisdom to have the blind teach the blind.

Posted by: Unemployed Northeastern | Jun 27, 2016 8:44:21 PM

P.S. Posner is a signatory to the Coalition of Concerned Colleagues, a group of law professors that wrote to the ABA Task Force on the Legal Education a few years ago. http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/taskforcecomments/032013_coalition_revcomment.authcheckdam.pdf. Other signatories include Campos, Caron, Tamanaha, Henderson, Kerr, Merritt, and Friedman (author of the wonderful "A History of American Law").

Money quotes from the letter:

" the median starting salary of
the class, among the less than half of graduates for whom a salary was
reported, was $60,000. The problematic economics are captured by this
fundamental mismatch: a graduate who earns the median salary cannot
afford to make the monthly loan payments on the average debt."

"Legal education cannot continue on the current trajectory."

Posted by: Unemployed Northeastern | Jun 27, 2016 8:48:57 PM

TS:

Are the vast majority of academics comparable to Posner in productivity or influence? The question answers itself.

Posted by: Curmudgeonly Ex-Clerk | Jun 28, 2016 7:02:21 AM

Over drinks, ask Posner what he really thinks of Campmanaha.

Posted by: No Guilt By Association | Jun 28, 2016 12:10:44 PM

Posner makes an outstanding point about fetishization of SCOTUS by academics. That job is so ridiculously easy. They take 60 cases which they can hand choose, each justice has 4 clerks to do his/her work, and every possible legal argument is presented in the thousands of briefs from top notch attorneys that they receive. The work of a Federal District Court Judge is about 1000x harder and has much more real world impact.

The only people in the legal world who have it easier than SCOTUS judges are academics, who, instead of authoring a dozen or so opinion, author 1 or 2 articles about a single SCOTUS opinion--and I suppose teach a class or two. That is just criminally easy.

Posted by: JM | Jun 28, 2016 12:32:13 PM

@No Guilt,

Given that letter he signed, as well as this post at Becker-Posner - http://www.becker-posner-blog.com/2013/03/some-economics-of-higher-educationposner.html - I think we can draw some conclusions on how much import he would give to the wage premium studies.

From the link:
"If legal education were an entirely private activity, neither regulated nor subsidized by government, an economist would describe the situation as one in which a fall in demand required sellers to move down their marginal cost curve in order to charge a price that covered their marginal cost... The demand for legal education is a derived demand from the demand for lawyers; if the demand for lawyers drops, so does the demand for legal education. If law schools fail to make a price adjustment, applications will plummet....

[T]he federal loan program enabled the law schools to raise tuition, in part it seems because many law school applicants, inexperienced in financial matters and afflicted with the overconfidence of youth, underestimated the cost of a legal education. They are beginning to wise up and as a result the number of applicants to law school has plummeted...

The obvious solution for the law schools is to reduce the size of their faculties and/or reduce faculty salaries. Although most law faculty are tenured, and so their salaries cannot be reduced, they can be laid off for economic reasons and, in lieu of being laid off, can agree to a salary cut. Law professors tend to be paid very generous salaries, especially relative to the amount of work demanded of them compared to the sweatshop hours of practicing lawyers and the intense competitiveness and resulting employment uncertainty in the law firm market nowadays....

What seems plain, however, is that the law school market is not in equilibrium; that it will move, quickly or slowly (probably the latter), to a new equilibrium; and that the new equilibrium is likely to involve smaller faculties and student bodies, a lower ratio of faculty to students, cheaper methods of instruction such as online, lower tuition, and perhaps looser (or no) accreditation standards, a reduction in the length of law school from the present three, to two, years, and the elimination of federal loans to law students."

Posted by: Unemployed Northeastern | Jun 29, 2016 8:40:46 AM