Monday, September 2, 2013

Professor Robert Condlin on Legal Education Reform: A Reply Part I

Professor Robert Condlin has recently posted an article on SSRN, criticizing legal education reform.  Because I strongly disagree with his observations and opinions, I have written this reply.

'Practice Ready Graduates': A Millennialist Fantasy

Abstract: "The sky is falling on legal education say the pundits, and preparing “practice ready” graduates is the best strategy for surviving the fallout. This is a millennialist version of the argument for clinical legal education that dominated discussion in the law schools in the 1960s and 1970s. The circumstances are different now, as are the people calling for reform, but the two movements are alike in one respect: both view skills instruction as legal education’s primary purpose. Everything else is a frolic and detour, and a fatal frolic and detour in hard times such as the present.

No one would dispute that the United States legal system has a labor market problem, but law schools cannot revive the labor market, or improve the employment prospects of their graduates, by providing a different type of instruction. Placing students in jobs is a function of a school’s academic reputation, not its curriculum, and the legal labor market will rebound only after the market as a whole has rebounded (and perhaps not then). The cause of the present troubles is a lack of jobs, not a lack of graduates (of any kind), and producing more “practice ready” graduates will have no effect on the supply of jobs. The proposal is a spectacular non sequitur to the present troubles.

The concept of “practice ready” also is unintelligible and would be impossible to implement if it were not. There are as many different types of practice, for example, as there are levels of readiness for it and proponents of the proposal do not say which of these various possibilities (and combinations of possibilities), they have in mind. If the expression had a clear meaning, law schools still could not implement it because proficiency at practice depends upon dispositions (i.e., habits informed by reflection), and dispositions take longer than a law school course to develop. Like a lot of blog commentary, the “practice ready” proposal is more slogan than idea. Perhaps that is why it is so popular."

Critique I:

Professor Condlin has produced a distorted picture of the legal education reform movement, as it concerns the delivery of teaching and learning. First, Professor Condlin thinks that the major purpose of legal education reform of the delivery of education is to produce practice-ready graduates who will be better able to obtain jobs. While there are a few in the legal education reform movement who have said this, the major purpose of reforming the delivery of teaching and learning is to produce better lawyers. Producing better lawyers is not tied to the other problems in legal education, such as the surplus of lawyers and high tuition debt of many law graduates.

Professor Condlin is also wrong that the legal education reform movement is merely a reaction to the recession in legal employment. Legal education reform has been going on for over 25 years. The Carnegie Report and Best Practices came out in 2007, before the recession, and these studies began several years before that. Michael Hunter Schwartz published two important articles on reforming legal education over ten years ago, and there have been many other articles before and since.

He also alleges that "While ostensibly about the content of legal education, in reality it also is about the allocation of power and responsibility between the academy and bar, and the important practical question of who should pay for what." There may well be a struggle between the academy and the bar, but those who are working for reform of legal education within the academy are not protecting the interests of the bar; they are trying to protect the interests of the students and the public at large. Moreover, aren’t the students paying to receive a legal education in law school? Why should most of this cost be shifted to practicing lawyers?

Professor Condlin also acts like the legal education reform movement is unitary.  This couldn't be further from the truth.  First, there are students or ex-students who are very upset with their lack of jobs and high law school debt.  Second, the bar and those in the academy are separate.  Within the academy, some scholars concentrate on the economic structural problems in law schools, and some on the problems with legal education.  Some consider both.  For example, in his opening sentence, Condlin is talking about two separate groups, scambloggers and law professors who consider both, but he makes them look like they are the same.  I would not call William Henderson or Neil Hamilton scambloggers.

Professor Condlin is also wrong that the present system is working. He states, "Law school curricular reform is not an economic stimulant and trying to use it for that purpose will destroy something that works in a futile attempt to revive something that does not." In making this statement, Professor Condlin is ignoring the studies that have demonstrated that the present system is not working, such as the McCrate Report, the Carnegie Report, and Best Practices for Legal Education, as well as numerous law review articles. I challenge Professor Condlin to cite a comprehensive study from the last ten years that says that the present system is working.

Tomorrow, I will discuss the details of Professor Condlin's article.

(Scott Fruehwald

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