Paul L. Caron

Sunday, April 14, 2013

Horwitz: What Ails the Law Schools?

Paul Horwitz Horwitz(Alabama), What Ails the Law Schools?, 111 Mich. L. Rev. 955 (2013):

Everyone engaged in legal education and not utterly asleep agrees that there is a "law school crisis." Building on recent works by Brian Tamanaha [Failing Law Schools] and Walter Olson [Schools for Misrule: Legal Academia and an Overlawyered America], this paper discusses its causes and potential solutions, using a typical dichotomy in recent populist movements -- the "one percent" versus "99 percent" meme -- as a lens. It examines arguments that the problem is economic and that it is primarily cultural; although I conclude the problem is economic and structural far more than cultural, I also argue that one of Tamanaha's primary recommendations for reform -- that law schools ought to display more experimentation and institutional pluralism, and that ABA accreditation requirements ought to make this more possible -- goes some way toward addressing both diagnoses. The paper is more descriptive than prescriptive, although I offer some thoughts on solutions. I emphasize three things: 1) law schools would be better off focusing on regional than national markets, although the US News rankings make regionally oriented approaches more difficult; 2) a serious increase in meaningful faculty governance and involvement is needed; and 3) the role and needs of the client have been surprisingly marginal in recent discussions of law school reform. The client needs to be a prominent part of reform discussions, which suggests, contrary to some extant views, that curricular reform ought to continue to be part of the discussion along with economic and structural reform.

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Although I don't disagree with Keating in the assessment of the changing nature of law work, I do disagree that "there is nothing wrong with law schools." When people go into debt of $100,000 or more to compete for jobs that pay on average $30,000, there is something "wrong". When people are lured by the prospect of big law jobs in a climate where that economic model no longer works, there is something "wrong." When people graduate and become lawyers who have no idea what representing the interests of a client means in terms of their work, there is something "wrong." When the law school curriculum is centered on the interests of academics at the expense of the critical thinking and communication skills that rise above the ability to fill out forms or draft form legal documents, there is something "wrong." A monkey can check boxes. A monkey can tell his client to settle for a certain amount. A monkey can ask a witness "what happened then." A lawyer is one who by his experience and skill contextualizes risk and advises accordingly. That skill requires experience, knowledge, risk assessment abilities, and communication skills which are also skills necessary in advocating to third parties on behalf of a client. I agree that the world of legal service provision is changing. The essence of being a lawyer, however, is not. Those skills cannot and never have been taught in a lecture. To the extent Socrates is invoked for the first year student you are exposed to the critical thinking necessary to read, evaluate and apply the law. That skill however does not take 3 years to learn. If it does, there's a problem.

Posted by: Pam | Apr 16, 2013 6:45:34 AM

There is nothing wrong with law schools. They can get away with charging an enormous tuition so someone thinks they are worth it. The problem is that we need fewer lawyers, as much of the business is being automated, and office work is generally much faster. There are only so many disputes to litigate, and as settlement is so much cheaper than litigation, many cases settle.

What I don't get is why more lawyers don't go for a combined law/accounting degree, or a degree in law/federal regulation compliance. Those are the growing fields.

Posted by: Keating Willcox | Apr 16, 2013 5:28:32 AM

What has happened in law school is a continuation of the ruination of undergrad. First, these are adults choosing to attend a graduate program, not children. Why are you forced by the ABA to take attendance? If you teach people to teach themselves the law, which is the point is it not, then when they are able to teach themselves Securities and get an A on the exam without attending your class what is the problem exactly? The problem is not the student, but the professor and the system that forces the attendance of adults as a requirement rather than taking a harsh look at the quality of the teaching and the curricula.

Next, there is a total focus from what I can tell from recent graduates on the "we can change the world and ensure 'social justice' because the government and police are evil and oppressive." It is a ridiculous distortion of someone's reality that results in graduates who have no idea how to represent the interests of an actual person as they flail against windmills. I actually heard someone argue to a federal judge that her client would gladly stay in jail longer if that meant he could address the supposed constitutional violation she imagined had occurred. Her client never showed up to his deposition so I never got to test my theory that she was mistaken. After more than 20 years in the area of criminal law I am pretty sure her client was most interested in getting out of jail, and cared little about her windmill campaign.

When I was in school it was well known that my law school designed its curriculum to make it difficult if not impossible to work in a law job downtown. The only way to do so was to skip classes which many upperclassmen did. Now it is probably even more difficult. Why was (is) this so? Well back in the day there was a debate about trade school v. an academic program. Absurd. The first year (which I taught a course in for two years) is the academic year. The next two years arguably have an academic component in the various more technical legal classes but ideally should be more focused on being a lawyer: critical thinking and problem solving in the legal context. This however would mean giving up control of the student to the real world and likely downsizing law faculty as you partner with private sources. It would also mean that the preferred law professors would be those who are more practical in their conception of what a lawyer is and does rather than someone who lectures on what he or she wishes the world could be or simply regurgitates the law as it exists. This person would not fit the mold of the "tenured academic". We simply cannot have that, now can we?

Next, being a lawyer is not about making money. It's about representing a client, that is providing a service that someone values enough to pay you for it. It's more than drafting a form. Not everyone who can read and talk can necessarily do it. But in order to support our system we fill our schools with people who can read and talk and want to make money. Now the big law firm model is crumbling under the reality of economics. Even someone who is charming and really good at talking is finding it difficult to find people to pay him $800.00 an hour unless they are paying him with someone else's money. So, there will be a downsizing for awhile of the group of people attending law school in this economy where reality hits the dream. And that's probably as it should be.

Posted by: Pam | Apr 16, 2013 5:00:35 AM

I found I learned more about law from BarBri, and I learned how to be a lawyer by practicing law. Law school is a waste of time and money.

Posted by: David | Apr 15, 2013 6:24:42 PM

What ails the law schools is the profession, in decline.

The school's disconnect from the profession means they don't naturally respond to changes in the job market.

Faculty and administrators too often argue a law degree is good for 'anything', but don't follow through with hard decisions that might expand graduates' job choices.

Posted by: unlingua | Apr 15, 2013 3:40:25 PM

Since law school faculties are for the most part composed of people who have no interest in the actual practice of law and don't have and don't want clients, recommendations 2 and 3 make no sense together.

Posted by: y81 | Apr 15, 2013 1:26:02 PM