Monday, August 30, 2010

The Future of the Legal Academy - Redux

Posted by Jeff Lipshaw

There's been a small outbreak in the blogosphere of the practitioner-professoriat wars, and I think we can trace this instance of virulence to a screed by someone named Bruce Newton dispassionately entitled Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy.  I suspect our readership tends to the practitioner, so here's a set of links to the academic side of the house, including Paul Caron, Steve Bainbridge, Rick Garnett, Paul Horwitz, Jason Mazzone (HT Solum), Lawrence Solum on Jason Mazzone, Kristen Holmquist, Jonathan Adler, and the Anonymous Law Librarian.

Given as I am, generally, to skepticism about either-or positions, and partial as I am both to practical skills and to impractical scholarship (having done a lot of each), I stick by my dean speech from several weeks ago.  The Mazzone post, which went up today, returns to a theme I'm pretty sure Larry Solum has worked with over the last several years, the idea of a department of legal studies that is part of the university housing sciences and the humanities, requires a Ph.D. for entry, and is separate from the professional training schools.  Nevertheless, as I mentioned to Larry in an e-mail earlier today, the realpolitik of the situation is that the academic reputation of the school is largely the basis for its recruitment of high ability students, high ability students reinforce the academic reputation of the school, and there's a vicious or virtuous circle (depending on your point of view).  What that keeps saying to me is that there really is less "training" than meets the eye, and far more filtering of pure analytical ability, in the same way that college athletics filter pure athletic talent.  Other failure modes, like arrogance, poor judgment, poor social skills, etc., are more difficult to filter in school, and are "later-career" differentiators.  When I was hiring lawyers, both as the member of a committee in a big firm, and as a GC looking for more mature lawyers, the critical thing was talent, not particular skills.  And we (or I) filtered for the other failure modes.

And, notwithstanding the meltdown of the last couple years, the markets for lawyer talent have pretty much worked in that way, at least in Big Law.  Having said that, the markets (students and firms) now seem to be demanding skills training, although I find that evidence to be anecdotal more than compelling.  More importantly, all of us seem to be recognizing that the base level of legal training necessary to identify talented lawyers doesn't extend much beyond the traditional first year curriculum.  So there's a logical focus on revamping the second and third years.

I'm teaching first year contracts for the first time since the fall 2005 at Wake Forest, when I taught a doctrinal class for the first time (and barely knew what I was doing).  The reasons I'm a "stick to doctrine" skeptic for law school became apparent again to me as I confronted the unreality of most of the traditional contract law syllabus.  I started on an article about frames of reference, no doubt far too impractical to concern those focused merely on practical (or doctrinal competencies), but I've excerpted a motivating anecdote below the fold.

Here's the excerpt:

Friends of ours who lived in the Chicago area owned a small house in a resort area in northern Michigan. He was the CEO of a large corporation. They decided they wanted to knock down the house and rebuild, hired an architect, got zoning approval, and came to an oral understanding with a builder in the area who not only had done many projects with the architects, but had successfully completed a much larger house for one of our friends' cousins. The builder gave our friends his standard four-page contract, which they proceeded to give to their lawyer in Chicago for review. The lawyer not only marked it up, but also added a fifteen-page addendum, including a lengthy "Certificate of Limited Warranty." Our friend called to tell me that the builder had received the markup, called her, and was "freaking out."

There was nothing wrong with the contract our friends' lawyer was proposing; in the right frame (say, between a commercial developer and a large-scale builder), it would have been a typical contract negotiation. The unreality in this context was the very idea that the risk allocation provisions of the proposed draft (including the so-called limited warranty), dependent on resort to adjudication for resolution, had value. Indeed, because they caused a rift in the relationship between the builder and our friends, they may have had negative value. The lawyer did exactly what transactional lawyers applying a legal before-the-fact frame of reference are trained to do. "Thinking like a lawyer" means imagining hypothetical future disputes, and then crafting contract language designed to having the client prevail if the hypothesized facts obtain. Moreover, thinking like a lawyer wholly within the contract frame of reference means viewing the hypothetical future disputes as real, and therefore as cost-laden, as the construction itself.

Stepping back, however, we can see that adopting the contract frame was only one of various approaches to the contingency and uncertainty. The operative frame for the builder, working as he did in a small town, was "trust." My assessment was that anticipating litigation (and therefore constructing complex risk allocation models in the contract) was the wrong frame to have predominated in the discussion; it was unrealistic to expect that post-construction dispute resolution had value. Indeed, most of the remedies, it seemed to me, were non-legal. The contract needed to provide that our friends tightly controlled the disbursement process so that the state of completion roughly matched the funds expended and lien waivers obtained. It meant understanding how small residential builders actually worked and fitting a model of project supervision to the usual frame (at least in northern Michigan) of trust and the minimally necessary legal rights, rather than forcing the situation into an unrealistic frame of contractual rights, duties, and remedies.

The point generally is not to ignore the "thinking like a lawyer" frame, but both to master its techniques and understand its limitations in expressing understandings or achieving results. To propose an analogy, it is well known that Picasso was a masterful representational artist. His pencil drawings were sublime. Nevertheless, even having mastered the technique, he found it insufficient for the meanings he wanted to convey in his art, and he adopted different frames (albeit expressed in modes or styles of painting).

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