Saturday, August 22, 2009

More from Paul Lippe on the Future of Law Schools

Posted by Jeff Lipshaw

Paul Lippe, who has been an agent provocateur (or thought leader, as they say) on the subject of legal education, has a follow up to his original Am Law Daily commentary to which our Bill Henderson linked a while back.  Follow the link and read it for yourself, but I'm not sure if the comments are available if you aren't a member of Paul's Legal OnRamp, so here's mine if you want to hit the "back" button on the browser after you read his column:

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Like Ray [Campbell, visiting professor at Penn State Law School, who also commented - UPDATE: see his original comments below the fold], I'm a former Big Law partner, and I was the VP & GC of a Fortune 850, NYSE company. I'm less likely than Ray (based on his comments) to try to argue that today's paradigm of legal scholarship has anything more than a passing relevance to the in-the-trenches practice of law. But that's not really the point. Practitioners have to understand that we started down a particular path over a hundred years ago when C.C. Langdell came up with the idea that law could be derived inductively from the reading of cases, akin to the scientific method in other disciplines. (There's a social science term called "path dependency" and it has to do with how hard it is to get off a particular path once you are on it; as an example, if you take a job at the beginning of your career with Weil,Gotshal, you've created different path dependencies for future choices than if you take a job with Sooem & Servem in Elko, Nevada.) Law became a subject for instruction in research universities, not merely for the training of lawyers, and with that developed a community of legal scholars, developing, indeed evolving, their own standards for what constituted advancement in knowledge. For a long time, that had to do mainly with legal doctrine, and academic energy devoted itself to the great treatises, and the great doctrinal advances like the UCC.

The problem with comparing law to medicine (as I did, and to which Paul links) is that while the practice of medicine is both art and science, the science is still hard science, and, moreover, the linkage between cutting edge theoretical research and its practical application is far more intuitive. For example, my son has his name on a paper that deals with work on the very subtle science of diabetic neuropathy in cells - how at a molecular and cellular level does the glucose cause the problems it does? Even if the research isn't directed at a cure, we can understand it in the web of scientific research that leads to useful advances and human flourishing.

That's far harder to do in law, and one only needs to scan the titles of the last 2,000 or so papers uploaded onto SSRN to confirm the hypothesis. Moreover, there's a lot of work produced and in spotty quality because of two structural features of academic law as it has moved down its particular path: (a) the sheer number of law professors compared to other disciplines, because the training of professionals subsidizes the theoretical pursuits; and (b) the plethora of student-edited (and non-peer-reviewed) journals. In short, law as academic discipline is still finding its place in the world. Given a hundred years of path dependence, however, "solving" the problem of legal education isn't going to occur without some acknowledgment of the academic paradigm. For example, we could certainly, as a logical possibility, move to a world in which most lawyers are trained in vocational institutes, and make theoretical "law and..." part of more traditional humanities and social science Ph.D. programs. But I suspect that most lawyers like their ties to the status of research universities that spawned most of them.

In fairness to Ray Campbell, my original version of this post did not treat fairly his original and thoughtful comment on Paul Lippe's column over at Legal OnRamp.   Here it is in full:

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Let me weigh in as someone who has been a big law partner, a start up company CEO, and now a law professor.

First, let me question your central assumption. Is being a lawyer just about serving paying clients? Not to diminish the importance of providing awesome service to clients, but I think a lawyer's duties are a bit more nuanced than that. You can be a great, client oriented lawyer and keep an eye on the bigger game, but you diminish the profession and short sell what law schools need to do if you take too narrow a view of a lawyer's role in society. I was privileged to work with some great lawyers, but a complete lawyer is going to bring to the game some of what Jerrold Solovy does - not just great client service, but a sense of what the law means in society.

I also think you might be surprised if you spent more time really looking at what law schools are like now. I know I was. Law schools are way better now than they were back when I was in law school. The scholarship is more interesting. (Really, it is. The various "Law and" movements have brought some fundamental insights, and add a lot more than novel length doctrinal treatments.) There are more opportunities for practical and clinical learning. Many law schools are looking hard at how they can best participate in the overall society, and have spawned institutes and centers that play vital roles.

In other words, some pretty smart people at law schools are already trying to address some of the issues you have identified, and have made real progress even if they haven't cracked the code entirely. The faculty I know are extremely concerned that students graduate well prepared to practice, even recognizing that their training will continue long after they graduate.

That's not to say law schools can't improve. Any institution has room for improvement, and that's especially true for institutions where a big chunk of the productive staff need respond only to their own views of what they should be doing. But, if we are going to talk about how to improve them, it would really help to start with an accurate assessment of both what law schools do today and what kind of lawyers they need to be creating.

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I certainly didn't mean to suggest that legal scholarship today is or should be more meaningful to day-to-day "in the trenches" lawyering than it used to be. What I meant to suggest is that today's scholarship is more interesting and perhaps more important than it used to be.

Back in the day, the descriptive aspect of legal scholarship largely described what courts did. Articles and treatises collected and analyzed cases. Some of it - such as Wright & Miller - was indeed useful to practicing lawyers; a lot of it was boring and beside the point.

In a world of Lexis and Westlaw, there's not much need for scholars to collect cases in ever more arcane niches of the law. It's easy enough to find what courts are doing, and lawyers are well trained to analyze those cases on their own.

The shift to "law and" scholarship has created tools for stepping back and looking at the law from different perspectives. To me, much of that research is really thought provoking. It's also work that practicing lawyers cannot do on their own. Over the long run, and academics really ought to be about the long run, this scholarship creates opportunities to improve the system in ways more fundamental than tweaking a line of cases.

At the same time, I don't mean to suggest that all modern scholarship has value, or that most legal scholars can afford to ignore the real world practice of law. While I don't think law schools need to be helping practicing lawyers through their day to day research, I do think that academic writing that is fundamentally ignorant about the day-to-day legal process is hamstrung, especially to the extent it purports to describe or create normative prescriptions for the real world. Models never map precisely to more complex reality, but beyond that models that begin with fundamental misconceptions about that reality are going to have a hard time producing valuable insights.

Posted by: Ray Campbell | Aug 22, 2009 10:05:43 AM

Ray, as to the last paragraph, I couldn't agree more. But is it ignorance? To your point about misconceived models, two of my targets have been the Schwartz and Scott theory of contract formalism, and the Gilson theory of value creation by transactional lawyers. What they have in common is an insistence on an underlying economic assumption (that because the transactions occur as they do, they must be efficient; if they are efficient, it is because TOTAL surplus in the transaction is maximized, not just a particular parties share of the surplus). In short, it's a category mistake that fundamentally conflates an objective and subjective view of the world. I don't these scholars are ignorant of day-to-day legal process. They are, instead, true believers in the theory, and force-fit the reality into the theory, instead of questioning whether the theory holds. (See Ian Shapiro's The Flight from Reality in the Human Sciences on this subject generally.)

I suppose the point is that there's skills, then doctrine, then policy, then theory, particularly of the kind you describe in the penultimate paragraph. There's a core of the academy, even in law, that is devoted to theory in way that does not (and should not) depend on usefulness, as opposed to a contribution to human flourishing (as aesthetics or philosophy or humanities contribute). That core teaches in the same institution as the skills people, and the doctrine and policy people bounce around in between them. That's a complex system to manage!

Posted by: Jeff Lipshaw | Aug 22, 2009 2:19:32 PM

Thanks for posting my initial comment.

I think we agree. It's clear, for example, that John Rawls' work contributes to human flourishing and our thinking about 'justice' just fine even though he never spent a day as a law student.

It gets more complicated when a scholar's work is more doctrinal, especially when the doctrinal work has a normative, prescriptive element designed to impact how things are done in the real world. Time spent in practice can help alert you to questions that ought to be explored and help you avoid naive misunderstandings, but it can also be misleading if you assume that your own experience is representative.

Posted by: Ray Campbell | Aug 22, 2009 4:22:57 PM

I like the last point. As someone who just graduated from law school, I noticed while in school that some professors assumed their own experiences were representative of general trends. For a variety of reasons, this is not always the case. There may be a selection bias that skews what a lawyer sees. For example, litigators in a firm may overestimate the potential for conflicts to arise since many of them only see situations where a dispute arose that required outside counsel. For example, some potential disagreements never develop into an actual dispute, others could be handled with little to no involvement of lawyers (e.g. business solutions), and still others may be settled with in house counsel.

Posted by: Practice of Law | Aug 31, 2009 12:57:06 PM

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