Sunday, November 20, 2011
For those in the academia with low blood pressure, I recommend reading David Segal's reportage on the current state of law schools (the latest can be found on the front page of Sunday's New York Times) because he can raise your blood pressure in a hurry. And I'm not certain if anybody will really be happy to read what he has to say, because the message is that law schools are running a scam and that anyone who depends on law schools -- students, law firms that have to hire law school graduates, clients -- is a chump. In the end, Segal's angle is great at generating rage but terrible at generating solutions.
The heart of his argument in the most recent article is that law students pay outrageous tuition but get no practical training. His solution, to the extent that he offers one, is that there ought to be stronger skills programs, including clinics, but of course the tremendous growth of clinics, with their small student-to-faculty ratios, is one of the most important reasons for rising tuition. Teaching students the law, legal ethics and practical skills turns out to be an expensive proposition. Law schools in the United States have chosen to try to do all three. If Mr. Segal wants to see legal education that ignores the development of practical skills, he should have a look at legal education in other parts of the world. Nonetheless, given the fluidity of laws and regulations, law schools in the United States have chosen quite sensibly to give students sufficient training in legal reasoning so that they can figure out the rest on their own.
It may well be that students thus emerge from law school ignorant of practical matters, like (taking Mr. Segal's opening anecdote) the steps one has to take to accomplish a merger. I teach business organizations, and I confess that I do not cover the steps necessary to accomplish that goal. However, I am pretty certain that even if I did, my students would forget those humdrum details until reminded of them in practice and that, once reminded by a partner in that practice area, they would have the tools they need to master the process. In Mr. Segal's anecdote, a first year associate confuses a merger with a stock purchase, but that distinction is covered in the law school curriculum. It turns out that it is just very difficult for students to retain all such information through three years of law school, bar preparation and entry into the work force.
In this blog post, I want to focus on one of Mr. Segal's side points, which goes to something like a contractual issue. Mr. Segal argues that law reviews churn up a lot of resources at law schools -- including a big chunk of student tuition -- and result only in wildly impractical navel-gazing. The implication is that not only students but also taxpayers who stand behind student loans are thus paying for something for which they did not bargain. There's a lot to be said about this.
Mr. Segal presents some statistics suggesting that about 40% of law review articles are never cited either by other law review articles or by courts. That suggests that there is quite a bit of useless scholarship out there, but I think the numbers would be quite different if he focused only on scholarship published in the top flagship law reviews and the top specialized journals. Those publications get cited to a lot and they very rarely have subject matters as esoteric as (to take Chief Justice Roberts's example) "the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria." Mr. Segal also ignores the fact that a lot of faculty scholarship involves writing casebooks and treatises and engaging in law reform, the impact of which immeasurably larger (not to say more important) than that of legal scholarship published in law reviews.
But what of the other 40%? Are those resources simply being dumped down the toilet? My answer is no for a lot of reasons, but here I just want to focus on the one reason most relevant to Mr. Segal's critique of law schools. Some of the best training that happens at law schools happens at law reviews. I came to law school with ten years of scholarly experience under my belt, because I had written a doctoral dissertation, published historical scholarship and taught before making the jump to law school. Still, my skills as a researcher skyrocketed in my third year as a law student when I was responsible for overseeing a team of cite and substance editors on a number of review essays that we published in our Review of Law and Social Change. The evidentiary standards for legal scholarship are far more exacting than they are in the humanities and the non-quantitative social sciences. No claim can be made without authority. As a result, I became a far more intrepid researcher, and I unlearned intellectual habits acceptable to my former field of study and adopted intellectual habits essential to successful lawyering.
I know that others have had very different experiences at their law reviews, but my experience is an important reason why every law school has a law review. In fact, when law reviews proliferate so that there may be half a dozen or more at prestigious schools, the impetus for such proliferation comes from the students who recognize, among other things, that the experience of working on a law review will help them develop important, practical lawyering skills as well as a greater appreciation of the theoretical underpinnings of legal doctrine.