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August 29, 2010

A potent attack (from a US Sentencing Commission lawyer) on the make-up and commitments of law professors

Thanks to notable (and mostly positive) buzz at law-prof blogs like Professor Bainbridge, TaxProf, Law Librarian, and PrawfsBlawg, I just came across this notable paper on SSRN, by Brent Newton, which it titled "Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy." 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.

Though this paper caught my attention principally because of its (reasonable, though somewhat strident) attack on modern law professor pedigrees and elite law school commitments, the bio of the author (as set forth in the piece's first footnote) ought also be of interest to readers of this blog:

Deputy Staff Director, United States Sentencing Commission; Adjunct Professor of Law, Georgetown University Law Center and Washington College of Law, American University.... The opinions expressed here are my own and should not be attributed to any of them or to the United States Sentencing Commission.  My perspective on legal education has been informed by having taught 32 law school courses – both doctrinal courses and “practical” courses – as an adjunct professor or lecturer while working as a full-time practitioner (including as a public defender for sixteen years).

August 29, 2010 at 10:08 PM | Permalink


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Real world training might serve the public interest instead of that of the CCE. As leaders of the profession, law professors, the ALI, all deans are all in utter failure. I would love to hear of a single exception. Thanks to their disloyalty to the nation, every self-stated goal of every law subject is in failure. The exception? Lawyer rent seeking. That is spectacular success. Not only in utter failure, but refuse to change.

Contract law doctrines are worthless for transactions below $million, because a lawyer will need a fee of $50,000 to make any legal effort worth while. Ebay ratings have a 95% success rate, down to transactions worth a penny. Don't keep your promise, you get a bad rating. They have 123D. After 3 unresolved breaches, you get expelled from their $multi-billion market. And at 1 and 2, your bids will drop to reflect the added risk represented by the low rating. Why not adopt Ebay ratings in contract law? All together: lawyer dumbass. Not one lawyer dumbass will support EBay system to replace contract law nor to even supplement it.

Egypt has dense poverty and a worthless police department. Why is its crime rate so low? Grab a purse, and you are now in a foot race with 50 people. They catch up, beat you up, and then hand you over to the police. Why not immunize to encourage self-help to cut crime? Why harass, threaten, arrest and sue the public trying to enforce the law in the US? All together: lawyer dumbass. Not one lawyer dumbass will support self-help to lower crime.

Posted by: Supremacy Claus | Aug 30, 2010 6:55:48 AM

I am teaching a course on Corporate Compliance at the Loyola Law School (as an adjunct). On the first day of class, I asked the students if they had heard of the Federal Sentencing Guidelines. None had. Same result when I asked the question in prior years to law students at Northwestern and University of Chicago.

Ted Banks

Posted by: Ted Banks | Aug 30, 2010 7:21:59 AM

I've heard this argument for many years, but I would refine it a bit. True, we don't spend enough time teaching students "how" to lawyer -- though the clinical education movement has been powerful and is still growing. Adjunct professors serve an incredibly valuable role too, especially in teaching narrower areas of law and practice, and they will continue to do so as law schools feel the crunch. Law schools are also more amenable to finding professors with more practice experience -- especially outside the top tier. But the law is not just the law, but what the law can, should, and will be. One of the hardest things to do is to teach students to be creative, to think outside the box, to challenge authority. And for that you need imagination, alternative universes, and other models -- discovered through comparative law, international law, law and philosophy, law and social science, law and history. All these ways of teaching are important, for lawyers don't just practice the law, they change it -- not just through the courts, but the legislatures, the blogs, and the public dialogue. That's why law firms put up with those kids from top ten schools who didn't know where the courthouse was -- they learn fast, write well, and have creativity and vision. Someone's gotta find out what the Egyptians are doing, after all, to see if that really works better.

Posted by: Linda | Aug 30, 2010 10:37:17 AM

I wouldn't trade the egghead/think-like-a-lawyer teaching model for anything. It prepared me very well for my career as an appellate lawyer. I'm not against more practical teaching methods as well, but the traditional model shouldn't be tossed out.

Posted by: appellate lawyer | Aug 30, 2010 11:19:57 AM

Heard and made some of the same criticisms about journalism education throughout my career as a newspaper editor and assistant professor of journalism.

In fact I might have been among the last working journalists with just an M.S. degree to find a place on a journalism faculty of even a small mid-western university. And that was back in the 80s.

My guess is law schools are no more eager than other departments on campus to be viewed as trade schools. More importantly, though, I doubt the sentencing commission guy would be much happier if he were encountering technically skilled lawyers unschooled in the profession's theoretical underpinnings.

As a reporter covering state and federal courts, I did see a vast range in the courtroom abilities of lawyers trying cases. Though I always figured the ones with talent, young and old, probably had what it took before they ever reached law school...confidence, bearing, mental agility, language skills and so forth.

Posted by: John K | Aug 30, 2010 11:40:20 AM

how true john. Heck once apon a time you could be a GREAT LAWYER and never have even WENT to school let alone a LAW SCHOOL

Posted by: rodsmith | Aug 30, 2010 2:02:58 PM

of course that was when the law in this country was based on common sense and not MAKE MORE CRIMINALS like it is now.

Posted by: rodsmith | Aug 30, 2010 2:03:43 PM

The remedies of the law are physical facts, acting on the body. Thus, all new laws should have been tested in small jurisdictions and shown to be safe and effective.

As additional sources of revenues, academic law professors should be applying for grants by courts, legislatures, interest groups. These grants would work out the empirical results of laws in small jurisdictions.

Posted by: Supremacy Claus | Aug 30, 2010 4:12:44 PM

Appellate Lawyer: Yes, it prepared you for YOUR job. But for non-appellate work? Forget it.

Ted Banks: That is terrifying -- particularly in jurisdictions where prosecutors and public defenders are routinely hired right out of law school.

I graduated from Yale. My classmates skipped most of their classes and never did the reading, because the whole place is pass-fail. I had to work like crazy to put together a schedule that was 80% real law classes (it was impossible to get to 100% with their offerings). Property isn't even a requirement at Yale, even though it's on the bar exam. I don't know about the other top-tier law schools, but I can tell you this: I knew how to think when I got to Yale. (Presumably, that's how I got in.) I didn't need Thinking 101. I needed Lawyering 101. Fortunately, I transferred to Yale after completing my first year at a "second-tier" school.... you know, the ones that teach you stuff like contracts and torts...

Posted by: sal | Aug 30, 2010 5:36:36 PM

I'm actually a little surprised that it even prepares people well for appellate law, unless your appeals are all of cases that were supremely well conducted/tried in the trial court, or you're a SC litigator who engages only in issues of pure law. Most intermediate appeals are about the facts and the record, and the appellant's case often founders on the shoals of waiver, forfeiture, or failure to appreciate some alternative ground for affirmance. In other words, you can't be a very good appellate lawyer if you don't at least *understand* how to be a very good trial lawyer, even if you didn't personally try the case.

Posted by: Jay | Aug 30, 2010 6:21:25 PM

Even in pure policy/constitutional litigation, one has to first climb out of a swamp filled with procedural tricks and traps. None of that chicanery is covered in civil procedure.

Posted by: Supremacy Claus | Aug 30, 2010 7:57:13 PM

I agree, rodsmith. When law was more about keeping society running peacefully and smoothly it was a different game. Now it's complicated, and the point seems to have shifted to providing job security and career advancement for prison guards, worthless politicians and ambitious law enforcement authorities.

Posted by: John K | Aug 30, 2010 10:23:51 PM

John: Obviously not a lawyer. You see the obvious, rent seeking. Now, look to who runs the government, makes 99% of policy decisions. They have made themselves invisible to you, cloaked in the appearance of virtue. It is the 15,000 person lawyer hierarchy. It can be done in one night of mass arrest for their insurrection against the constitution, rapid trial for one hour, and summary execution of the internal traitors, by morning. Every social problem would be solved immediately. Our economic growth rate would be 9%. There would be no crime. Our enemies abroad would be dead, after ending the hobbling of our heros by the lawyer traitor. The 20% of the economy they destroy or plunder for their enrichment could go to research and development, so progress can go 10 times faster than it does today.

Posted by: Supremacy Claus | Aug 31, 2010 12:25:37 AM

Sal: How come Yale serves as the vector for every evil social doctrine infesting our shores from degenerate Europe? Is there anyone there who loves this country as it is?

I would like to see it lose all government funding, its tax exempt status, and to be closed by the health department. What a set of horrible people in one little place.

Posted by: Supremacy Claus | Aug 31, 2010 12:31:05 AM

With one exception, Jay has identified how Texas appellate courts resolve cases. "Failure to preserve" always fits nicely for the affirmance, a Jay has noted, but "Harmless error" is a formidable cleanup hitter when you "positively have to [convict] every person in the room."

Posted by: Mark # 1 | Aug 31, 2010 3:05:01 AM

That's funny, Mark # 1...and true.

Just how much legal training does it take to enable appellate judges to say affirm every time someone asks them to do something?

Posted by: John K | Aug 31, 2010 9:49:21 AM

Mark # 1-- RIght, although, theoretically, "harmless error" is a doctrine that still permits review of errors in some circumstances when a criminal defendant has failed to preserve them. In a civil case, there's no such thing as "harmless error," if an error wasn't brought up below, it's just forfeited, harmful or not. At least, that's my understand of general federal practice.

Posted by: Jay | Aug 31, 2010 11:04:25 PM

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