Paul L. Caron

Wednesday, February 9, 2011

Newton: How Law Profs' Preoccupation with 'Impractical Scholarship' Obstructs Legal Education Reform

Brent E. Newton (Adjunct Professor, Georgetown; Deputy Staff Director, U.S. Sentencing Commission) has published Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, 62 S.C. L. Rev. 105 (2010).  Here is the abstract:

In response to decades of complaints that American law schools have failed to prepare students to practice law, several prominent and respected authorities on legal education, including the Carnegie Foundation for the Advancement of Teaching, recently have proposed significant curricular and pedagogical changes in order to bring American legal education into the twenty-first century. It will not be possible to implement such proposed curricular and pedagogical reforms if law schools continue their trend of primarily hiring and promoting tenure-track faculty members whose primary mission is to produce theoretical, increasingly interdisciplinary scholarship for law reviews rather than prepare students to practice law. 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. 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. This essay proposes significant changes in both faculty composition and law reviews aimed at enabling law schools to achieve the worthy goals of reformists such as the Carnegie Foundation.

Mr. Newton has some harsh words for law professors:

Especially at law schools in the upper echelons of the U.S. News & World Report rankings, the core of the faculties seem indifferent or even hostile to the concept of law school as a professional school with the primary mission of producing competent practitioners. ... Regardless whether they possess a Ph.D., a vastly disproportionate number of new law professors graduated from so-called “elite” law schools, which not coincidentally employ the largest percentage of impractical faculty. “Law professors are a self-perpetuating elite, chosen in overwhelming part for a single skill: the ability to do well consistently on law school examinations, primarily those taken as 1L‟s, and preferably ones taken at elite „national‟ law schools.” Some critics contend this homogeneity in law school faculties has resulted in an ethos of perceived intellectual superiority and classism and has made full-time professors, at least those with tenure, jealous of their privileged positions. Other critics contend that many law professors are so absorbed in their scholarly pursuits that they are largely unconcerned with students‟ needs – academic or otherwise. ...

Could [a typical law school] professor whose primary scholarly interest is criminal law and procedure effectively prosecute or represent a criminal defendant at a felony trial? Could such a professor who writes law review articles about the First Amendment effectively represent a client in a civil rights litigation? Could such a professor whose expertise is securities regulation effectively represent a client or the government in an S.E.C. enforcement action? Imagine such professors being first-chair counsel in a complex civil or criminal litigation who must interview potential witnesses, take depositions and engage in electronic discovery, file and respond to summary judgment motions, conduct voir dire, present the testimony of an expert witness, cross-examine (and impeach) hostile witnesses, and make closing arguments to a jury. There are some full-time non-clinical law professors capable of competently representing clients in real cases, but they are the exception, not the rule, particularly among professors hired in recent years at highly-ranked law schools.

How can we expect law students to become competent practitioners if the core of full-time law faculties, notwithstanding their scholarly prowess, do not themselves possess even the basic skills required to practice the type of law about which they teach and write? How can we expect law students to become competent and ethical practitioners when the faculty members best suited to teach them the necessary practical skills and ethical lessons from real-world cases – clinicians, LRW professors, and adjuncts – are marginalized and even openly held in disdain by some members of the “main” faculty?

For a detailed discussion of the article, see Why Can't Johnny Research Practice Law? Or, Would You Hire a Law Prof to Represent You? (Law Librarian Blog).

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Here are two basic facts:

1. The third year of law school is an utter waste of time. Everything that's important for a law student to learn can be learned in two years -- maybe less.

2. The work of new attorneys is not worth much, because those attorneys have no experience practicing law.

The clear implication of these two facts is that the third year of law school should be replaced with something much more valuable to both the student and the law firms: some sort of unpaid internship year, spent in a real law firm.

As we all know, summer "jobs" are worthless, and don't teach kids anything about practicing law. They need to work for a year at least, and see how law is really practiced, if they're to be expected to be of any real worth to a firm upon graduation.

This is basically how lawyers originally developed, after all. The formalizing of legal education was a good thing at some point, but when you step back and think about it, the idea of completely eliminating actual time spent working in an actual law firm alongside actual attorneys, and replacing that with three years of sitting at a desk seems preposterous. You can't expect a kid to make a meaningful contribution to a firm after sitting around surfing the internet in class for three years.

New lawyers need experience more than anything else, so make them get experience. Law firms shouldn't pay for it. Clients shouldn't pay for it. So let the kids pay for it, in the form of working for free.

File this under "things we allknow need to happen, but never will."

Posted by: Hansel | Feb 10, 2011 11:06:33 AM

Markopoulos Ghost -- it would be terrific to have law professors who can "figure out whether [the SEC] does anything worth preserving? Or to do comparative analysis of how securities reg is done internationally?"

The problem is that if the law professor doesn't know the reality of practice in securities regulation, all the speculation in the world about whether the institution is worth preserving and any ability to comprehend how securities regulation actually is done internationally is just so much speculation about how many angels dance on the head of a pin.

Those of us desperate to improve the capacity of law schools to teach actual lawyering are not arguing that law schools should do nothing but teach lawyering. But the separation of "theory" and "practice" that is so readily and widely accepted in law schools is at least as appalling as Newton's article suggests.

Posted by: Peter Friedman | Feb 10, 2011 6:01:07 AM

A few years ago, Tori Salzmann and I wrote "Why there should be fewer articles like this one," which is on westlaw, which offers much of the same view. But I very much agree with the observation above that much of this is client and law firm driven: they won't pay to educate students to become lawyers; they're demanding law schools do it. Sort of hard to argue with that...

Posted by: David Hricik | Feb 9, 2011 5:45:38 PM

There's a post immediately following that says that Harvard just appointed a Professor of Practice.

Posted by: mike livingston | Feb 9, 2011 3:47:40 PM

I put many of my hypotheticals to students (in tax courses and, when I was teaching it, wills and trusts) in the form of questions such as "So what do you tell the client?," "What information do you need from the client?," "What do you tell the supervising partner?" . . . so that they get a sense of how the "rules of law" and the thinking that they are doing (or should be doing) translate into the realities of law practice. It can be done. Every now and then I refer to the client as "the person who is paying for your services." This doesn't make them lawyers in three years -- Reggie is correct on that point -- but it shifts their orientation from "what the law would be if I were in charge" to "how do I deal with the law that constrains what I can do or that requires me to do something as I prepare to start a business, establish an estate plan, build an amusement park, help a refugee, . . . "

Posted by: Jim Maule | Feb 9, 2011 2:10:47 PM

So I take the author to be saying that we need people in the law schools who can better navigate the current SEC...rather than try to figure out whether it does anything worth preserving? Or to do comparative analysis of how securities reg is done internationally?

I think he might want to take a look at Harry Markopolous's book "No One Would Listen." He might reconsider the immense value he seems to put on "everyday practice," as opposed to the type of work many law profs do trying to improve the environment where that practice occurs.

Posted by: Markopolous Ghost | Feb 9, 2011 2:08:44 PM

You can't produce a lawyer in three years. All you can really do is teach some legal research, writing and thinking skills with emphasis on thinking. When I talk to my students about points of practice, most are totally unimpressed because most of them are not going into tax (which is what I teach). I hear the smae comments about my colleagues who teach criminal law or criminal procedure. Students are so removed from actual practice, that most don't really care about it. The bottom line is that the argument that law schools are not preparing law students for law practice is about cost shifting of resources. Clients no longer are willing to pay for training young lawyers, law firms don't want to foot the bill; hence, the pressure is put on law schools. It's not working, it can't work because you cannot produce a lawyer in three years. Six or seven, maybe! We have to come to the conclusion that it just takes time to become a lawyer.

Posted by: Reginald Mombrun | Feb 9, 2011 1:29:01 PM

Just so you will not feel bad, this condition has been prevalent in the graduate studies and Ph.D. programs in Economics for decades.

The entire mission of post graduate education in Economics is to prepare students to publish articles that (1) are so mathematical in nature that they are incomprehensible to anyone but themselves and a few editors, and probably not even to all of them and (2) are based on assumptions that are so in conflict with the real world as to render the analysis and conclusions meaningless (example: Assume a world in which there are no taxes . . . )

Posted by: Sid (real one) | Feb 9, 2011 11:01:33 AM