Paul L. Caron
Dean




Tuesday, June 24, 2014

Law Profs React to Steve Bainbridge: 'Law Teaching Is Walking Off a Cliff and Nobody Seems to Give a Damn'

These law profs react to yesterday's post, Bainbridge: 'The Profession I Love--Law Teaching--Is Walking Off a Cliff and Nobody Seems to Give a Damn'

  • Steve Bainbridge (UCLA)
  • Andy Grewal (Iowa)
  • Jeff Harrison (Florida)
  • Doug Kahn (Michigan)
  • Michael Livingston (Rutgers)
  • Henry Manne (George Mason)
  • Jim Maule (Villanova)
  • Ted Seto (Loyola-L.A.)
  • Tom Smith (San Diego)
  • Daniel Sokol (Florida)

Jeff Harrison (Florida):  "The "law and" is interesting because where does it link up with those who want to save the profession by making sure law grads can interface with technology/business, etc. Perhaps the "and" has just been the wrong one. In fact, there probably is even room for law and economics only this time applied economics. Dead on with respect to scholarship. You can write to be a star in the gold fish bowl of law professors or write for legislators, judges and attorneys and be regarded as pedestrian. The second is consistent with public service; the first is far more self-indulgent. "

Doug Kahn (Michigan):  I agree with Steve both on his view of empirical legal work and on the law and courses. Two additional points. The current proposal to eliminate the requirement of a third year of law school is motivated by the high financial cost that students must bear. Another factor is that many of the courses in law school have little or nothing to do with preparing students for the practice of the profession. It s difficult to justify requiring students to spend so much to take those courses. Also, it is a mistake to suggest that the study of law itself is not a truly intellectual field. Law is a complex field that is just as interesting and worthy of intellectual study as any other field.

Michael Livingston (Rutgers):  The problem with Prof. Bainbridge's analysis is that it ignores the reason that people got interested in "law and" in the first place. Put simply, most "traditional" legal scholarship just wasn't very good, a point that CLS, law and economics, and earlier legal realism made clear over an extended period. The choice is not "law and" vs. practice-driven scholarship, which in practice means mediocre scholars who spend the rest of their time consulting. The choice is good "law and," of the type Prof. Bainbridge himself engages in, or bad "law and," which unfortunately has become increasingly prominent.

Jim Maule (Villanova):  It all comes down to relevance to what law schools should be doing. For me, the test is whether current law faculties can teach a transaction-based curriculum ("The Client Wants to Buy a Property," "The Client Needs a Will") rather than a doctrinal curriculum. The current debate is not new, nor is the present crisis a surprise, at least not to those who were looking closely

Theodore Seto (Loyola-L.A.):  "One interesting question is whether the problems are equally distributed across legal education. Using 2011 data, Bill Henderson compared associates hired with associates elevated to partner for T14 schools as a group and for non-T14 schools are a group. He found, in effect, that 51% of NLJ 250 associates from non-T14 law schools stayed and made partner. By contrast, only 18% from T14 schools did. This is a stunning difference. Why T14 grads ended up leaving at such disproportionately high rates is not clear. It could be that they all had better options (unlikely in 2011, with its horrible job market). It could be that they weren't adequately trained. Or it could be that they had been misled into thinking that law was all about exciting high theory and not about the mundane tasks law is often about. In any event, Henderson's data suggests that the problem Bainbridge is worrying about may be concentrated in T14 schools (and perhaps T14 wannabes)."

Daniel Sokol (Florida):  The market thinks that we have value. Consulting also reinforces our teaching and scholarship as we have a better sense of what is happening in practice.

Henry Manne (George Mason):   What we have now, as I described in the paper [How the Structure of Universities Determined the Fate of American Legal Education], is the result of the inmates (the faculty) taking charge of the asylum.

Tom Smith (San Diego):  "It's a good thing to devote oneself to teaching or to write practical, hands on stuff for the bench and bar. I doubt they will want that at Harvard or Yale, but at my small but undeniably cute law school, well, maybe. But I don't want to do that. I'm still swingin' for the fences and will till the day I drop from age or get pushed out to pasture. All this talk about bench and bar misconceives the project of law. It assumes it is static and doesn't work itself pure or work itself something or other anyway, partly in response to law being conscious of itself, or less pretentiously, people looking at it, taking the big view, and asking, what's it all about anyhow? Among other things that makes inevitably ideological, which makes a lot of the scholarship utter rubbish. But here's the thing -- not all of it is! Admist the great piles of stinking manure, a few diamonds may be found. It is we, the legal scholars of the universe, who paw through that manure. And try to create the diamonds. And frequently just add to the manure. But not always."

Andy Grewal (Iowa):  Is there a form that I could use to nominate Stephen Bainbridge for President of AALS?

Steve Bainbridge (UCLA):  I solemnly swear and affirm that andy is not a sockpuppet. Anyway, can you imagine the carnage?

https://taxprof.typepad.com/taxprof_blog/2014/06/law-profs-react.html

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Comments

Anon:

At the risk of appearing to be an "old griper" I first want to agree on the importance of lawyers being statistically and empirically aware, and even competent in some instances. There are even niches in which legal scholars can offer useful empirical work on issues that we hope involve matters of consequence as opposed to pseudo-scientific "navel gazing". But Bainbridge's point is certainly worth considering in a balanced way. If we go back almost 150 years to his "reforms" at Harvard we can discover that in his own words Langdell stated that law schools did not even belong in the university unless they were based on science. Of course he also stated that the Science academic legal researchers were to study was based on a set of fixed universal principles that they explored through analysis of doctrine found in the raw material of cases within the sub-disciplines of law. This has always struck me as a variety of Scientism, not Science, and the articulation of what is essentially a metaphysical system of Natural Law. Subsequently, Langdell pronounced that the "legal scientist" (insert James Barr Ames here) necessarily lacked experience in actual law practice because such experience clouded and tainted the quality and purity of the true legal scholar's insights.

I think that the fact that our Doctrinal system was intended to be Legal Science (but was actually a set of metaphysical assumptions) and that legal scholars and teachers were "dirtied" or intellectually corrupted by any engagement in the actual practice of law has provided the underlying assumptions for American legal education in varying degrees of intensity in a way that still exists.

To some degree this helps explain why numerous law schools have hired faculty with a PhD as well as a law degree. My opinion is that legal scholars by-and-large know they lack a coherent and reliable methodology and are in the situation characterized by the "Emperor's New Clothes" where they pray no one actually will point out their nakedness. In such a context, hiring PhDs means (in the minds of law schools) that they are actually hiring people who are in possession of an actual scientific methodology capable of being applied to the legal system. In some instances this "PhD bias" is valid, but in others it is a byproduct of the insecurity and uncertainty of law faculty. The point is that PhD/JDs may simply be reasonably smart people who could not find employment in a jam-packed academic world in their area of educational specialization. But the PhD elevates them "above the crowd" of JD-credentialed candidates.

Another point is that it really doesn't matter what Harvard and Yale do in hiring PhDs. They can do anything they want and get away with it because people mostly are paying tuition for "the brand" and the world of contacts the degree provides. It is, however, of somewhat greater importance for the host of "non-elite" law schools whose actual mission is to educate lawyers. When such schools fall into the Langdellian trap of rejecting the validity and significance of educating thousands upon thousands of students to represent clients on basic levels they have distorted their underlying mission--one granted by the monopoly given law schools by ABA accreditation processes and state supreme court rules. The danger here is that in this age where law schools are struggling to impress others for "peer rankings" through scholarship, when they become oriented to hiring PhDs without practice experience they likely weaken their ability to provide a strong legal education and continue to represent a focus that blurs the fuller responsibilities of law schools to provide the best professional education to new lawyers upon whom the system relies.

Posted by: David | Jun 25, 2014 8:03:03 AM

With all due respect, this sounds like a lot of griping from old timers who haven't kept their skills up to date with the demands of real research (i.e., empirical social science) complaining about the modern world and fondly remembering the good old days of their youth when they could get away with sloppy analysis and baseless causal claims.

Read Lee Epstein's article on the Rules of Causal Inference. The problem with legal scholarship is not enough ELS.

When there is real data linking JD-Ph.D.s to worse teaching and worse long term outcomes for students, then we'll talk.

(In other words, when the anti-ELS crowd learns to use ELS to do research critiquing ELS, then we can talk).

It's frankly outrageous that people can graduate from law school and become litigators, judges, and legislators without a basic understanding of statistics.

Anyone heard of anti-trust? Employment discrimination? Hundreds of other areas of law that rely on experts performing statistical analysis?

How will law grads ever know how to evaluate claims about causation and the impact of legislation, rules, and institutional characteristics without a serious empirical background?

How will they tell the wheat from the chaff?

Perhaps some sloppy researchers are hoping they won't.

Posted by: Anon | Jun 24, 2014 8:19:47 PM

I typically agree with Bainbridge's opinions/posts, but this one misses the mark somewhat for me. For one, I don't think he does a good enough job addressing the question of who, if not law profs, should be doing empirical legal scholarship, using the techniques of modern social science. Perhaps his response is that no one should be doing it, but that wouldn't be a defensible position. If the answer is "political scientists and economists", then I would suggest that those folks, as Bainbridge recognizes, often have grievously inadequate views of what the law is, or how legal systems work. I think there is real room for including law professors in meaningful, valuable ELS-type studies, perhaps often in collaboration with well-trained social scientists. Just because much of ELS work may be bad doesn't mean we should run away from trying to do it better, and doing it better might surely involve law professors in a meaningful way.

Second, I think Bainbridge exaggerates the extent to which ELS scholarship has actually infected legal academia. I admittedly have little data on this point, but I suspect that outside of a very few elite law schools (e.g. Northwestern, perhaps Boalt, Irvine, pick a few others), real ELS scholars, and real JD-PhDs, are few and far between. For example, at my own institution, Wisconsin, I am probably the only person on the faculty who sometimes runs regressions in their research. I would suspect that most law schools don't have anyone who runs regressions or does similar "quantitative" research, which I think is what ELS is usually thought to be about. Almost all law profs continue to do "non-empirical" (meaning non-ELS, non-statistical, often completely methodologically unaware and naive) research, nearly all of the time. If I am right about that, and I think I am, then it becomes hard to maintain that ELS is somehow causing the law teaching profession to walk off a cliff.

Posted by: Jason Yackee | Jun 24, 2014 3:03:49 PM

All I can say is that I really think American law professors don't actually read stuff before they comment. It is not because people can't think about things when there is a crisis and that"the sky is falling". It is that the "best" minds (re-invented for the moment) simply fell prey to a "best or self-interest" syndrome that turned them "stupid". What was happening was NOT something that couldn't be figured out. So, for me. the wonderful litany of "mea culpas" mostly rings hollow. My response is, "where the hell were you and what were you thinking?" This is embarrassing for a bunch of "self-indulgent" smart people.

I ( and others) sought to point out the deficiencies a considerable time ago. Seriously "Dudes", where you been?" This is really not all that hard to figure out. I am NOT trying to be "snarky" BUT many law faculty have tried to suggest the shortcomings of legal education over an extended period of time but have been speaking to deaf ears that acknowledge the basic ignorance and arrogance (some call it intellectual insecurity or inadequacy) of the American law professoriate. The deliberate self-serving ignorance does become tiresome. As does the sudden seeming epiphany that law schools' main tasks are to educate lawyers". As our modern hero "Bart Simpson observes: "Doh!"

Prophets, Priests and Power Blockers: Three Fundamental Roles of Judges and Legal Scholars in America.

David R. Barnhizer, Cleveland State University Fellow
Document Type

AND (of possible interest)

“The Purposes and Methods of American Legal Education”, 36 Journal of the Legal Profession 1 (2012)

“Lawyer regulation strategies—A personal view from the USA”, 17 International Journal of the Legal Profession 181 (November 2010)

“Redesigning the American Law School”, 2010 Michigan State L. Rev. 251

“A Chilling of Discourse,” 50 St. Louis University L. J. 361 (2006)

“Propertization, Contract, Competition, and Communication: Law’s Struggle to Adapt to the Transformative Powers of the Internet,” 54 Cleve. St. L. Rev. 1 (2006)

“Truth or Consequences in Legal Scholarship,” 33 Hofstra Law Review 1203 (2005)

“Profession Deleted: Using Market and Liability Forces to Regulate the Very Ordinary Business of Law Practice for Profit,” 17 Georgetown J. of Legal Ethics (2004)


International Fora, and Coercive Power (Ashgate, December 2001)

"Human Rights Strategies for Investigation and "Shaming," Resisting Globalization Rhetoric, and Education," in EFFECTIVE STRATEGIES FOR PROTECTING HUMAN RIGHTS: Prevention and Intervention, Trade, and Education (Ashgate December 2001)

and the Exploitation of Traditional Communities," in EFFECTIVE STRATEGIES FOR PROTECTING HUMAN RIGHTS: Prevention and Intervention, Trade, and Education (Ashgate December 2001). An edited version was reprinted in BLUES OF A REVOLUTION (ISA Net/Quality Books, 2003)

“ 'On The Make’: Campaign Funding and the Corrupting of the American Judiciary," 50 Catholic Law Review 361 (2001)

“The Virtue of Ordered Conflict: A Defense of the Adversary System,” 79 Nebraska Law Review 657 (2000)

“Princes of Darkness and Angels of Light: The Soul of the American Lawyer,” 14 Notre Dame Journal of Law, Ethics & Public Policy 371 (2000)

“Comparison of Russian and American Clinical Education,” Proceedings of the

“The Justice Mission of American Law Schools,” excerpts reprinted in CLINICAL ANTHOLOGY: READINGS FOR LIVE-CLIENT CLINICS, Hurder, Bloch, Brooks, and Kay, editors (1997)

"Of Rat Time and Terminators," 45 J. Legal Ed. 49 (1995)

"Freedom to Do What? Institutional Neutrality, Academic Freedom and Academic Responsibility," 43 J. Legal. Ed. 346 (1993)

"The Justice Mission of American Law Schools," 40 Cleveland St. L. Rev. 285 (1992)

"The Purposes of the University in the First Quarter of the Twenty-first Century," 22 Seton Hall L. Rev. 1124 (1992)

"The University Ideal and Clinical Legal Education," 35 New York L.J. 87 (1990)

"Natural Law as Practical Methodology: A Finnisian Analysis of City of Richmond v. Croson," 38 Cleveland St. L. Rev. 15 (1990)

"The Revolution in American Law Schools," 37 Cleveland St. L. Rev. 227 (1989)

"The University Ideal and the American Law School," 42 Rutgers L. Rev. 109 (1989)

"Prophets, Priests and Poer Blockers: Three Fundamental Roles of Judges and Legal Scholars in America," 50 Pitts. L. Rev. 127 (1988)

"A Clinical Carol," AALS Clinical Newsletter, 1987

Article
Publication Date

1988
Publication Title

University of Pittsburgh Law Review
Abstract

This Article is concerned with legal scholars' intellectual and social obligations emerging from their having preempted the field of law, possessing a monopoly on legal education, and benefitting from their privileged status as intellectuals of the law. While these obligations fit under the general heading of service to the original and natural idea of knowledge, it is argued here that legal scholars and judges fulfill their obligations primarily through three fundamental roles. The three fundamental roles of American legal scholars and judges are 1) judges and legal scholars acting as reformulators (priests and prophets) of "ultimate truths" in the particular language of each culture and generation, 2) judges and legal scholars serving as societal "shock troops," and 3) judges and scholars as "power blockers."
Comments

Link to a copy on HeinOnline - Available at your institution or remotely via their proxy server or via password.
Repository Citation

David R. Barnhizer, Prophets, Priests and Power Blockers: Three Fundamental Roles of Judges and Legal Scholars in America, 50 University of Pittsburgh Law Review 127 (1988)
Volume

50

Posted by: David | Jun 24, 2014 12:38:22 PM

I agree completely with Steve Bainbridge, and I disagree with Michael Livingston’s suggestion that most traditional legal scholarship before the social sciences took over was “not very good.” Legal scholarship was far better, more influential and more respected before the social sciences took over, and law professors were far more respected in the profession. As demonstrated by Michael Livingston’s comment and some of the others, the academy has little respect for practitioners, and vice versa, as legal scholarship has become more removed from the real world. A judge I used to work for liked to say that law professors have become alienated from the means of production. Loose statistical scholarship based on correlations without obvious causation and political diatribes have replaced careful analysis of what the profession is doing and how it fits into a coherent and logical framework. Faculties with very little practical experience look down upon the profession as mundane. Prior to becoming a professor, I worked as a lawyer handling complex corporate bankruptcy cases. After becoming a professor I have handled simple consumer Chapter 7 cases as part of a pro bono program and clinic. There have been many interesting and complex legal issues in my simple consumer Chapter 7 cases. Sure, there are mundane aspects to the practice of law, just as there are mundane aspects to being a law professor. Who finds excitement and fulfillment in grading exams, for example. It is also true that more and more of the practice has become form oriented and less creative, but those forms just push creativity and brilliance under the surface – it’s still there for those that master the subject and relish the challenge of quality law practice. Our lack of respect for the practice of law has badly damaged the practice, as we unleash more and more undertrained students into the profession. Sit in court and watch the parade of incompetence sometime. I think the only solution is for law professors to re-engage with the profession through pro bono work, through consulting, and through meaningful practical scholarship. We need to focus more on hiring people with experience as lawyers rather than shunning them. We need to have higher expectations for our students, and to impress upon them the challenges and pleasures of law practice.

Posted by: Gregory Germain | Jun 24, 2014 11:59:13 AM