Paul L. Caron

Wednesday, June 26, 2013

Diamond: Washington & Lee, Experiential Learning, and Global Warming

W&L LogoFollowing up on last week's post, W&L's Dismal Placement Results Question Experiential Learning Push for 'Practice-Ready' LawyersStephen F. Diamond (Santa Clara), Washington & Lee Law Prof. Replies to Prof. Merritt: Too Soon to Tell:

I think many aspects of the W&L program sound exciting. There may be great arguments about implementing these kinds of curriculum reform as part of the general modernization of higher education.

But one gets into much shadier territory to suggest any relationship between these kinds of changes and employment outcomes. That is a function largely of the changes in the macroeconomy. If law firms and corporations need lawyers they will take on board all sorts of JDs and train them as needed, which I witnessed first hand during the dot com boom. When they don’t need them anymore they will get rid of them, as some folks at Weil Gotshal discovered this week.

Suggestions that what academics do with law school curriculum can impact overall employment remind me of those who argue that global warming is man made. It seems reasonable until you realize the same people making that case were advocates of global cooling thirty years ago. ...

On the one hand [critics of legal education] all seem to agree that law schools should add more experiential/clinical programming. And they also all definitely agree that law school is too expensive. Yet they never seem to address the fact that clinical and experiential programming is labor intensive and therefore inherently expensive. There is, then, a contradiction at the heart of the reformers’ cause.

If you look at the staffing of law schools over the last few decades the single largest shift and likely contributor to increased costs has been the expansion of clinical and experiential programs as well as the expansion of adjunct teaching. ... Now there is some merit to this turn of events, undoubtedly. And if there is one thing that is true, it is that it is responsive to student demand. ...

But the university is not just a training ground – it is a distinct kind of institution whose autonomy from society, and from the market and state, must be protected. What those new law students do not know is what law practice is really like. Once they graduate they will quickly find that the time and space that a university setting provides for independent thoughtful consideration of issues, concepts and theories will all too easily and quickly dissipate under the pressures of the “real world.” They should be encouraged to take full advantage of the opportunity to push off confrontation with that world while in school. Over the long run the lessons learned during a period of contemplation will create real value for them and for their clients.

If that is something we can agree on then I think it is much easier to examine potential alternatives to the current law school curriculum.

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The global warming analogy is probably apt. In the sense that when there is a cold, snowy day, climate change deniers will point to this as final and conclusive evidence that there is no global warming, because it is cold today. Professors Merritt and Diamond point to W&L's 2012 employment stats and point to it as final and conclusive evidence that employers will not hire from an experiential program. But what if it is hot tomorrow? What if the 2013 class does better in employment outcomes than the 2012 class did?

Posted by: Hughlly | Jun 26, 2013 7:13:09 AM

The globabl warming analogy is not apt at all. Unlike the factors behind the various theories of global warming, the financial disaster that awaits at least 66% of law graduates each year is certain and predictable. A much better analogy would be the negative health consequences that arise out of overeating or smoking (ex. high debt with little chance at high paying job = financial misery). So what if the 2013 class does better in employment outcomes? Barring a few rare exceptions, unless someone starts at a biglaw job, it's a bad outcome and a mistake to have enrolled in law school. Smart money has biglaw jobs contracting, but if for whatever reason they expand, it will only be by a thousand jobs or so. There are two determinants of biglaw hiring: 1) mergers and acquisitions activity, and 2) the ability to bill 1st/2nd year associates for extensive e-discovery. Both were at a historic high in 2007. No. 1 is cyclical, and No. 2 is gone forever.

Global warming has an infinite number of variables. No one really understands it (especially Al Gore), and I'm not even sure it is capable of being fully understood, although I'm sure that certain analyses/predictions are more rational than others. I've seen at least three law professors bring up global warming in the last month (Diamond, Campos, and some other one I don't recall). I have no clue why they presume they are authories on this topic.

Posted by: JM | Jun 26, 2013 9:33:05 AM

Wow, had no idea there were so many climate change deniers in the legal academy.

The analogy is inapt, but for a very different reason: Unlike with global warming, there is neither consensus *nor evidence* on whether experiential learning makes better lawyers. Until there is -- and getting those data will take a while -- we simply cannot know.

Posted by: Prison Rodeo | Jun 26, 2013 9:53:56 AM