Sunday, January 20, 2008
Posted by Jeff Lipshaw (cross-posted at Concurring Opinions)
I mentioned to Dan Solove at Concurring Opinions (in praise of his post) that I am giving a talk to the Suffolk Business Law Association with the title "How to Be a Great Business Lawyer Even if You Majored in Philosophy," and he invited me back for an encore post. The connection here is that "law" and "philosophy" are in the same sentence, so it must have something to do with interdisciplinarity in the legal academy, which has, by virtue of Brian Tamanaha's post, become a matter of widespread discussion in the blogosphere. I'm not going to try to link up to all or even most of them - Dan did it recently, and, as I mentioned to Larry Solum in an e-mail yesterday on one's ability to predict, his "post" on the subject ten, and maybe even two, years ago would have been an unread essay in the Journal of Legal Education; today it is read by thousands of people within hours of his writing it.
I feel like I ought to say something on this issue not because I was in practice for so long, but because of what I was doing in practice for so long, which was managing, as much as doing, legal work, and hiring lawyers. Hiring lawyers, both those who will work in-house, and firms to do work at varying levels of sophistication, is an endeavor at the polar extreme from most of what lawyers learn and do. You can use all sorts of rules of thumb (for the practitioner audience) or heuristics (for the professorial audience), but making a commitment to a person by which one entrusts the myriad judgment of a deal or a case or a business has more judgment and less analysis than almost anything one studies in theory or doctrine in law school (and it's part of my thesis for the talk).
Having said that, I agree with another blogo-pundit that Brian has intertwined two issues - the fate of non-elite law schools and their graduates, on one hand, and the rising (and, from a practice standpoint, arguably irrelevant) inter- or multi-disciplinarity of the law school professoriat. Here, for what it's worth, are four observations:
1. There's something to be said for the Luhmann-Teubner theory of social systems in law - that is that law is a closed system that has points of interconnection with the rest of society, but is "autopoietic" in that it self-generates its own principles, standards, processes, results, etc. I would posit that legal academia is autopoietic even within law. To put it more bluntly, practicing lawyers don't care what the law professors are thinking or writing about, as long as the professors are churning out law grads with the basic doctrinal training (that training that Larry Solum aptly says fits like a glove). Or to put it another way, Larry Solum and I are almost the same age, so his essay describing what it was like to be a legal academic from the late 70s until now is fascinating; I was a hard-nosed practitioner over the same period, had no concept or even awareness whatsoever of anything Larry described, and, trust me, was absolutely no worse for the wear as a lawyer!
2. With everything that can or should be done to improve legal pedagogy, in fact, you do learn a lot in law school about the law. It's a sad statement that the worst irrelevancy offender is the course I have taught - contracts - because rarely do you ever litigate or worry about the issues taught - offer and acceptance, consideration, etc. But even having said that, there's something about the history, tradition, thinking process, whatever, of the closed system that one does learn. And I can testify that some or all of the following courses I took in law school were not a waste of time when I got into practice (and I'm sure there were others I can't recall offhand): torts, civil procedure, constitutional law, property, trusts and estates, securities regulation, tax, evidence, real estate transactions, business associations.
3. I'd be careful about painting the non-elite school with too broad a proletarian brush. I don't know if my school, Suffolk, turns out policy-oriented lawyers on a national scale, but I do think we have a significant relationship with state and local government in Massachusetts, and a role to play in that arena. On the subject of the cost-benefit, and without minimizing the plight of today's young lawyers saddled with debt, it's hard to believe the market won't sort this one out. If there's no real or perceived return on the degree, are students really that gullible that they would incur $100,000 of debt just because law schools would like the revenue? I'm familiar enough with the behavioral economics of this (over-optimism, etc.), and this is awfully rational choice of me, but if you amortize $100,000 of debt over a forty-year career, the debt service is $5,000 a year. So you only have to improve your earning capacity by that much a year to make it a rational decision. Right?
4. The history Larry Solum traces of the trade school/professional school/social science model is fascinating and rich and deserves more attention than I will give it here. Personally, I think Larry is onto something with the Ph.D. in law, because the fact of the J.D. as terminal degree for academics and practitioners has two effects: (1) it fosters the practice-academy divide because academics feel an even greater need to close their system to highlight their differences from mere practitioners, and (2) it is something less than "real" scholars in sister disciplines would expect. Larry mentions political science as an area to which one might compare this dilemma; I think there are even more: business administration, public administration, medicine, dentistry, journalism, to name a few. At least looking at those areas would tell us how much of legal academic angst is unique to legal academia.