Wednesday, December 19, 2012

UC-Hastings Dean Frank Wu on what's right and wrong with legal education.

Below are a pair of editorials appearing in today's Huffington Post by UC-Hastings Dean Wu about what's right and wrong with contemporary legal education. Dean Wu has been ahead of the curve when it comes to taking action in response to the current crisis in legal education so perhaps his criticism of prestige-mongering among schools while praising efforts to better match course offerings with trends in legal practice suggests more positive changes ahead for his school.

The Problem with Legal Education.

. . . .

Here is what has happened [to law schools]. There is a sequence of steps. Each of them appears rational in isolation. But cumulatively they lead to consequences that no group of actors foresees much less intends.

Alumni and students, among others, want their school to be highly ranked. The value of their degree depends on it.

Deans and professors concur. Our career success and satisfaction is measured by progress in this regard. We move our school up, or we move ourselves up.

An important factor in rankings are peer surveys: you are only as good as other professors believe you to be.

To impress other professors, we aspire to be like them. Specifically, we as a collective body try to resemble the professors at the most prestigious schools. Either we imitate them or we hire them. Or, if we can't afford the famous names, we at least attempt to recruit as new colleagues the students whom they have mentored.

. . . .

The desire to avoid being perceived as a "trade school" becomes a self-perpetuating cycle. Professors have invented a metric for themselves. We assess our influence by "citation count." It's akin to Googling yourself. We track the number of hits for our names (and our rivals') in the database of law reviews.

People are rewarded on this basis: promotion, tenure, chairs, prizes, and raises. The number becomes not only a measure for merit but the primary means of defining it.

There is a school that symbolizes all of this. Yale.

. . . .

It isn't all the fault of one Ivy League institution. All of the selection mechanisms of faculty members favor geeks. (I know: I'm one of them.) These preferences coincide with, if they do not directly cause, a distinctly cerebral orientation of the resulting community. (The corresponding desire to produce the "best" law school by conventional metrics means admitting students who happen to possess the highest test scores and undergraduate grades.)

The effect ratchets. The more sophisticated the work, the more solipsistic it seems. To be sophisticated, one must know what "solipsistic" means. In this enclosed environment, they have an expert who has a Ph.D in addition to a J.D., and consequently we need a pair with credentials to match.

. . . .

There is another reason for the overwhelming mass of heavily-footnoted nonsense. Students at Yale and elsewhere are no less savvy than their teachers. They want to impress prospective employers. They know that a means of distinguishing themselves is that line on one's resume that says "Editorial Board" of XYZ journal. They have an incentive to found more journals.

Coupled to the boom in law schools (opening at a rate of more than one per year for a generation), the proliferation of student-edited publications, a true anomaly in academe, means an accelerating demand for material. Assuming the ratio of quality work to dreck has remained approximately constant throughout, the absolute quantity of lousy ideas mathematically must have increased. The signal is overwhelmed by the noise.

These dynamics are no accident. You want smart; we'll give you smart.

 In Praise of Practical Legal Education.
Lately there has been much talk about silly electives in law school. Like much of the angry discussion of legal education, this conversation confuses the issues. The risk is that we will mistake the obscure for the impractical. To the contrary, so much of what lawyers must understand to be successful in representing actual clients with real problems, requires that they acquire technical expertise.

Let me be clear. I agree wholeheartedly that legal education, and legal educators, must be meaningfully engaged with the bench and the bar, to say nothing of the general public. My point is that a legal education with the greatest value to the student and society is a legal education that continually adapts to our world and that turns out a graduate who likewise is constantly adaptable.

What once might have seemed marginal has become mainstream. Health law was arcane, but that was the field of the most important case the Supreme Court decided last term. When the first Internet law courses were offered only a few years ago, people scoffed at them. Yet as quickly as technology progresses, the supposedly fanciful topic has become complex enough to deserve sub-specialties such as privacy.

. . . .

Entire practices come into existence, because a professor gives a name to a casebook. By doing so, the teacher brings together various pieces of law that looked as if they were separate, but which through an original organization are unified. Elder law, consisting of components each more obscure than the next, is about as practical as could be. Any law student who plans eventually to move back to her hometown to set up shop should sign up for elder law; she will not lack for work.

The profound change that is occurring is the demand for interdisciplinary, strategic thinking. A lawyer must understand law of course: their primary skill sets are concerned with the interpretation of precedent of prior cases from time immemorial as well as the array of statutes and regulations that make up the modern state. The ability to perform legal reasoning is necessary, but it is not by itself sufficient. The law student who develops only their strengths in analysis of doctrine will not lead the profession.

The obvious example is the lawyer who also boasts a STEM background, meaning science, technology, engineering, and math. Even with a glut of lawyers on the market, there are not enough people who blend training in law with training in STEM disciplines. They are sought after for more than the intellectual property disputes that dominate headlines. The formulation of public policies ought to be guided by real knowledge of law and science, not assumptions about both that are demonstrably wrong.

All of this is also true in regular day-to-day practice. The lawyer who succeeds as a solo practitioner is a lawyer who understands business. In addition to being able to cross-examine a witness and draft a will, a new graduate of law school should be able to, at a minimum, read a balance sheet. Even if their aspiration is to be a civil rights trial lawyer, they will not advance their cause if they cannot determine whether a venture is making money or losing it. After all, they themselves are in business -- whether in their own firm or as a member of a larger enterprise.

. . . .

Continue reading here.

(jbl).

http://lawprofessors.typepad.com/legal_skills/2012/12/uc-hastings-dean-frank-wu-on-whats-right-and-wrong-with-legal-education.html

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