July 5, 2012
Which law schools lose the most when applicants decline?
This is a simple question of great practical importance to many law schools, yet very few law school administrators understand how to answer it. Who would have thought that clarity would be supplied free-of-charge by an underemployed recent law school graduate?
But that is what is happening now, in "Tough Choices Ahead for Some High-Ranked Law Schools," an Am Law Daily essay written by Matt Leichter, one of the silver linings of the declining legal job market -- and there aren't too many. Matt is a J.D.-M.A. in law and international affairs from Marquette University who passed the New York bar in 2008, finished his masters work in 2009, and then moved to the Big Apple as the bottom was falling out of the entry level market. Unable to find conventional legal employment, Matt started doing freelance writing on law-related topics.
With plenty of time on his hands, Matt turned his graduate-level quantitative skills to the task of analyzing a law school education market that seemed unsustainable. Matt first put his analyses on display at the Law School Tuition Bubble. His writings eventually attracted the attention of The American Lawyer, which has now published several of his data-driven essays.
Here is what sets Matt apart.
- He digs very deep for facts and, in turn, uses one of his biggest asset --time -- to build datasets that answer important and relevant questions
- He is non-ideological. Just facts and factual analysis.
- He writes about complex technical stuff in an accessible, credible way
Matt has all the core skills of a truly great lawyer. Finding no takers, the entire legal education establishment benefits by Matt channeling his time, energy, and considerable intellect into relevant topics crying out for dispassionate analysis.
His "Tough Choices" essay is a real gem. Here is the bottomline: This year's applicant cycle likely will deliver its greatest blow to US News Tier 1 schools who generally admit students who were angling to get into even higher ranked schools. This inference can be teased out of the ratio of applicants to offers (selectivity), and offers to matriculants (yield).
To conduct this analysis, Matt had to cull data, school-by-school, from several years of the ABA-LSAC Official Guide to Law Schools (aka "the Phonebook"). But it enables him to produce the chart below:
What this chart says is that admissions officers have to read more applications and make more offers to fill their entering classes. Based on the data in Matt's chart, in 2004, for all ABA-accredited law schools, there was a 24% acceptance rate, and a 31% yield from those offers. In 2010, the acceptance rate went up to 31% (schools were being less selective) and the yield went down to 25% (fewer showed up to enroll).
Applicant volume may be declining, but the trends above suggest that there is a lot more "competitive shopping" going on. Why? Because information costs are going down and prospective students are adapting. And this year is bound to be the most aggressive year ever. According to this NLJ story, It's a Buyers' Market for Law School, virtually every student is now negotiating for scholarship money.
Declining applicant volume, shifting yields, and highly informed consumers make it very difficult for law school administrators to lock in their LSAT and UGPA numbers, which schools generally fixate on because of U.S. News ranking. This produces pain in one of three ways:
- The school shrinks the entering class (announced by at least 10 schools), which severely tightens the budget
- The school buys its class through financial aid, which blows a hole in the budget (happening here)
- The school significantly relaxes the LSAT and UGPA and braces for a drop in the rankings because its peers are pursuing strategies #1 or #2.
#1 and #2 may seem like the prudent course, but a central university won't (more likely can't) provide a financial backstop for more than a year or two, if that. If the admissions environment does not change dramatically, which seems unlikely, some combination of layoffs, rankings drop, or closures will have to be put on the table.
Matt's ingenuity is on full display when he demonstrates, with data, the profile of the most vulnerable schools -- and its a far cry from the bottom portion of the U.S. News rankings.
- Low accept/high yield (think Yale and Stanford) are safe.
- High accept/high yield are also fine. They are nonprestigious but have strong regional niches or missions. Tier 3 or 4 designation means nothing.
- Low accept/low yield crowd -- a bunch of Tier 1 schools -- are vulnerable to significant rankings volatility. If they drop, next year's applicant volume will be affected, making it very difficult to rebound.
- High accept/low yield are the most likely to close.
Until August and September, when the wait lists finally clear, nobody really know the depth of market shift. Only then can the budget holes be finalized. Deans will then have candid conversations with their central administrations to answer the question, "Is this downward trend permanent?"
[posted by Bill Henderson]
July 2, 2012
Betting on the Next Generation of Law School Graduates
Two years ago, I got a call from Jack Crittenden, the editor-in-chief of The National Jurist, a publication targeted at law students. Jack asked me if I would be interested in writing a column for the magazine.
After thinking over the offer, I concluded that it would be a good way to "diversify" my intellectual capital. Many of my ideas are outside the legal academic mainstream and are critical of the status quo. Yet, I reasoned that law students would be one group more inclined to give me a fair hearing. Why? Because in 2010, as in 2012, a disproportionate number of students were/are getting shortchanged by a miserable job market. When the status quo closes its door on you, the mind naturally becomes open to new ways of viewing the world. Further, regardless of the current job market, for the next 20 years the influence of this generation of law students will only grow.
So I accepted Jack's offer and started writing. I will be eternally grateful to Jack for making me that offer (and eternally grateful for tenure, which provides the platform for the long term and the unorthodox).
When I started writing the National Jurist columns, I never quite knew how they would end. In an attempt to break down the distance between the student and the professor, I recounted some of my own (inglorious) law school experiences. Unconstrained by form, I just wrote what was honestly on my mind to an audience I really cared about. It was refreshing, that's for sure, but much to my surprise, these essays seemed to boil down my academic ideas into something useful and practical. The emails I started receiving from students suggested that I was making progress.
Ironically, the National Jurist writings are now influencing my academic work, including several essays I am writing this summer on legal education and the legal industry. Yet, the true virtue of those essays may be their brevity. So, in case you are curious about the subversive ideas I am passing along to our youth, with Jack's permission, I am republishing several of these essays on the Legal Whiteboard.
- The Inferiority Complex of Law Schools (Mar 2012) [original PDF]. Suggests that we law professors are plagued by a century-old inferiority complex that obstructs our ability to be effective educators.
- Is a Great Lawyer Made or Born? (Jan 2012) [original PDF]. Provides some science-based clues for why some lawyers fail and others succeed.
- Seduced by Legal Brands (Sept 2011) [original PDF]. Relates the very moment in my legal career when I became a skeptic of brand-name law schools and law firms.
- The Client-Focused Lawyer (Jan 2011) [original PDF]. Discusses the disconnect between law school classes and the skills needed to become a successful lawyer.
[posted by Bill Henderson]
The Client-Focused Lawyer
[by Bill Henderson, originally published in The National Jurist, January 2011 (PDF)]
Over the last three years, the majority of my research has focused on lawyer competencies, or what I prefer to call lawyer success factors. This research has fundamentally changed my perceptions of legal education, primarily because the majority of success factors are not taught, assessed, or measured during law school. It is not that we law professors are deliberating ignoring something important. Rather, we are not even aware that something beyond legal knowledge and technical skills are necessary for success.
Based upon my own observation, and a fair amount of time sifting through data, I think the single best predictor of both success and satisfaction as a lawyer is the ability to become truly client focused. Unfortunately, this client-focused mindset is completely absence in the large law school classes that are the core of the law school curriculum.Everyone has heard the old saw that law school teaches students how to think like a lawyer. For over a century, this has been accomplished by guiding students through a series of edited appellate opinions. Drawing upon precedents, students begin to undertake how a particular “black letter” rule produces different legal outcomes depending upon the facts—hence the endless stream of law professor hypotheticals.
The law, however, can sometimes be indeterminate. Law professors like to focus on the indeterminacy because it makes for great exam questions (and law review articles). Students who deftly handle the gray area tend to get the highest grades. It is also how the law professoriate replicates itself.
Once in the world of practice, however, clients hire lawyers to solve problems, not manufacture ambiguity. Before giving any advice, or taking any action, we need to understand the true nature of the problem. This requires us to ask open-ended questions. To listen. To gather missing facts. To put ourselves in the client’s shoes. To find an appropriate and effective way to convey to the client that we understand the problem. To listen some more. And then to prescribe a course of action, or, alternatively, to candidly admit that we cannot provide a cost-effective solution.
In my hundreds of conversations with lawyers over the years, the one common factor I have noticed with happy (and typically financially successful) lawyers is their ability to connect with clients by earning their trust. Why, then, is this skill set missing from the law school curriculum?
I think the answer is two-fold. First, legal knowledge and technical skills are often critical to solving our clients’ problem. Second, focusing on the needs of the client requires us to become conscious of own on limitations as counselors and strategists. Because many of us want to feel expert and important—that is why we went to law school after all—we falsely conclude that technical mastery is all that is needed to serve clients well. Law professors in particular tend to overswing the technical hammer because our security and livelihood does not depend upon our ability to solve the problems of actual clients.
In his book, The Trusted Advisor, the professional services guru David Maister describes the difficulties of becoming client focused. As the client relates his or her problem, our minds race to formulate words that will make us sound expert—not unlike the anxiety of the entire first year of law school. “If we are honest and strip down all of these distractions to the core,” write Maister, “we likely to find some form of fear at the root. It may be fear of embarrassment, or failure, of appearing ignorant or incompetent, or fear of loss of reputation or security.”
Maister notes that the professions like law attract a disproportion number of people who are prone to fears. We compensate by overachieving. Indeed, many of us worked for years to win an academic marathon that continues throughout law school. Ironically, it is the very success at technical excellence that makes it more difficult for us to connect with clients and develop a client following.
This pattern shows up again and again in my work with law firms. For example, entry level layer typically spike on a measures such as “quality focus” and “analytical reasoning”. Highly successful partners share these attributes. But they also spike on measure like “customer focus”, “innovation”, “problem solving” and “fearlessness.”
Clients are not the best judges of our technical abilities. But they are capable of sizing up our motives. When we step out of our comfort zone to truly listen to clients’ problems, and to ask questions that reveal our own lack of understanding but also our sincere desire to help, we have the potential to connect with our clients and earn their trust. Lots of lawyers are willing to sell them legal advice. But you are interested in solving their problem.
For readers interested in learning more on how to connect with clients—and peers and colleagues throughout the legal profession—I would recommend reading Maister’s The Trusted Advisor. Another worthwhile book on the topic is Patrick Lencioni’s Getting Naked: Overcoming the Three Fears that Sabotage Client Loyalty. I am happy to say that both of these authors are influencing the curriculum of the 1L Legal Professions course at the Indiana University Maurer School of Law. My colleagues are working hard to be client-centered law professors.
Seduced by Legal Brands
[by Bill Henderson, originally published in The National Jurist, September 2011 (PDF)]
Every year as the on-campus interview process gears up, another class of high performing law students fret over their chances of getting an offer from a cadre of firms that, a year earlier, they had never heard of. The thought process goes something like this. “Oh, these types of firms pay a lot of money. And among these firms, some are harder to get hired at than others – they are more prestigious. If I can land a job at one of these firms, the entire legal world will know that I am smart. That would feel great. And I can quickly pay off my student loans and keep my options open.”
Money and peer pressure are a potent mix. They make it virtually impossible to remember the original reason for applying to law school.
During the dot.com bubble of the late 1990s, I was a student at the University of Chicago Law School. In the classroom, I was deeply intimidated by my classmates. But as we ploughed through the OCI process, I was astonished to see my fellow students anguishing over Skadden versus Latham. Or gnashing their teeth that they might have missed the Chicago grade cutoff for Gibson Dunn. Weren’t these firms more alike than they were different? And what made them so great beside the relative difficulty of securing a callback?
The prevailing analysis during OCI seemed shallow and bereft of reliable facts. We were taking our cues from each other. Yet, I could sense my own irrational desire to compete and win. I wish I could say that I was smarter than my classmates. But that’s not true. I was just older, and life had already thrown water on my face.I was 35 years old when I started law school. I had taken a long detour. After dropping out of college after my junior year (at age 21), I ran a business for awhile and eventually landed a job as a firefighter-paramedic. By virtue of the fact that I showed up for union meetings, I eventually got elected president.
For me, anyway, strategizing over a collective bargaining was much more fun than house fires or ambulance calls. And because I loved it, I invested a huge amount of time in the negotiation process and developed some skill and expertise. I liked outsmarting--or trying to outsmart--the management lawyers. I liked the reliance on facts. And I liked finding ways to make a bigger pie so we could argue less over how to slice it. So I figured that it was time to finish my college degree and apply to law school.
When I returned to college, one of my professors was impressed by my engagement and work ethic and encouraged me to switch careers. So in the fall of 1998, I was deliberating over Cleveland-Marshall night school or the University of Chicago. I ultimately resigned my job because I was a far better union negotiator than a firefighter-paramedic. Although I was qualified for my fire department job, the job itself did not strongly align with my interests and passions. Some new guys on the job were running circles around me –they had passion. So I figured it was time to move on. Literally, lives would be saved.
As I moved on to my new career, it did not take me long to find the smoke and mirrors. The legal economy was booming, so students from the national law schools were invited to Holiday mixers at all the big Cleveland law firms. With only 10 weeks of legal education under my belt, I got five or six offers of summer employment at weekly rates that nearly doubled my (high) union wages. So it was pretty obvious what was happening. “He’s at Chicago; he owns a house in Cleveland; his wife and daughter still live here. Make him an offer.” There is no way I would have gotten this treatment if I had attended Cleveland-Marshall. The firms weren’t recruiting Bill Henderson; they were recruiting a brand – a law school brand that would buttress their own law firm brand.
I have long been fascinated with lawyers’ fixation with elite branding. In his book, Predictably Irrational, the economist Dan Ariely observed that “thinking is difficult and sometimes unpleasant.” This core insight is why marketers work so hard to build a strong brand that can be used as a substitute for rational thought. Spun in the best possible light, a brand is a short cut to a good decision. And because many others take the short cut, the people who follow the brand are never alone, nor are they asked to explain themselves. This feels good. More precisely, this feels easy and safe.
Because lawyers get paid big money to think, it stands to reason that lawyers would less likely to be seduced by brand names. But that’s not so. A large number of very prestigious law firms rely on law school brands in a very mechanical way, rarely inquiring on the actual rigor or breadth of the education received. Similarly, law schools are fixated on law school brand in hiring their entry level professors. Yet, when you start poking around for facts or evidence to assess whether the brand decision is in fact the right decision—for example, to build this law firm, or educate this group of students—the facts are in short supply. Why? Because lawyer egos are tied up in the perceived superiority of the brand names.
As someone who studies law firms and law schools, I think the old order is breaking down. One hundred years ago, the national law schools separated themselves from other law schools by requiring undergraduate education as a condition of admission. These schools also hired full-time faculty who worked on the first generation of Restatements of Law, legal treatises, the uniform state law movement, and eventually the New Deal legislation and the creation of the modern administrative state. Although most lawyers during this period began their careers as solo practitioners, the small proportion of paid law firm jobs (less than 5% of all lawyers in private practice) went to national law schools graduates. Why? Because these graduates received an objectively better education.
By the mid-1950s, the American Bar Association (ABA) and the American Association of Law Schools joined forces to institutionalize the national law school model and make it the standard for entry into the profession. This is the origin of the undergraduate requirement, the three-year JD degree (replacing the LLB), and full-time law faculty committed to legal scholarship. With the rise of the great public law schools, which lowered the economic barriers to full-time legal education, and the advent of the LSAT, which reduced the number of admittees who would flunk the 1L year, the United States enjoyed an enormous surge in the number of highly capable, well prepared lawyers. These lawyers, in turn, were integral to the development of the highly dynamic, regulated U.S. economy that emerged during the second half of the 20th century.
Today, however, we have a new set of problems that requires a new kind of lawyer. Our global economy is interconnected and complex that we need law more than ever, yet clients and governments will go broke trying to buy or supply legal services under the traditional time and materials model. We need methods for facilitating transactions and resolving disputes that are better, faster, and cheaper. This requires a broader range of skills (team work, emotional intelligence, leadership, followership, peer and client communication) and knowledge (statistics, information science, systems engineering, marketing, finance) than are currently taught in the biggest brand name law schools or offered to clients through the most prestigious law firms.
As lawyers, are we providers of an established set of legal services, or are we, more broadly, problem solvers? The former is mere subset of the latter. Further, the latter is more valuable. All around me I see lawyers, especially young lawyers, figuring this out. In the years to come, they will be the people who solve some of the most significant challenges of the 21st century and, in the process, create the next generation of powerful legal brands. Will one of those lawyers be you?
Is a Great Lawyer Born or Made?
[By Bill Henderson, originally published in The National Jurist, January 2012 (PDF)]
Many law students spend their 1L year fearing that they might be the admissions mistake. I was one of them. The only feedback is what can be gleaned from the professor-student dialogue. In turn, everyone uses this information (if you can call it that) to handicap their likelihood of making law review or otherwise getting the grades needed to get the most coveted jobs. The whole process seems very binary: Am I smart enough to be a successful lawyer, yes or no?
When I became a law professor, my research on law firms and legal education eventually brought me to the topic of lawyer success. I started collecting examples of lawyers with sterling credentials who failed to develop a significant practice; and those with less impressive pedigree who ended up becoming go-to experts and indispensible lynchpins of their organizations. What explained these divergent outcomes?
The research of Carolyn Dweck, a cognitive psychologist at Stanford University, provides some important insights to this question. Before delving into these insights, however, ask yourself whether the following statement is true: “A lawyer’s skill set is determined primarily by innate ability—you either have enough or you don’t.”Dweck’s research focuses on self theories. If you agreed with the above statement, your self-theory reflects a fixed mindset. You tend to believe your destiny (and others) has been substantially fixed by your genetic endowment. In contrast, if you disagreed with the statement, your self-theory reflects a growth mindset. You believe you can substantially change your abilities and intelligence through focused effort and learning. See Carol S. Dweck, Mindset: The New Psychology of Success (2006).
Self theories are important because they affect our choices and behavior. According to Dweck’s research, people with a fixed mindset tend to prefer activities that validate their own abilities. Similarly, they shy away from tasks that may provide the world with evidence that they lack innate talent. In contrast, people with a growth mindset believe they can acquire important skills, knowledge and abilities through effort. So floundering at a task is not failure—its learning. As a result, the two mindsets evaluate opportunities very differently and thus tend to accumulate different life experiences.
Dweck has conducted several fascinating experiments regarding the differences between fixed and growth mindset people. For example, in psychology, it is long been known that people tend to overestimate their own abilities. In a sample of college students, Dweck and her colleagues collected self assessments of ability and compared them with objective measures of performance. Remarkably, growth mindset people had a near perfect correlation between self-perceptions of ability and their own performance. In contrast, fix mindset people accounted for virtually all of the exaggerated self perception.
Dweck explains, “when you think about it, this makes sense. If, like those with the growth mindset, you believe you can develop yourself, then you’re open to accurate information about your current abilities, even if it’s unflattering. What’s more, if you’re oriented toward learning … you need accurate information about your abilities in order to learn effectively. However, if everything is either good news or bad news about your previous traits—as it is with fixed-mindset people---distortion always inevitably enters the picture.”
In another experiment, people with both mindsets visited the brain waves laboratory at Columbia University. They were then asked a series of hard questions and given feedback on their answers. According to the subjects’ brain wave activity, people with a fixed mindset tended to pay close attention only to the portion of the feedback that told them whether they got the answer right or not. When presented with information that could help them learn, there was no sign of interest. In contrast, “people with a growth mindset paid close attention to information that could stretch their knowledge. Only for them was learning a priority.”
Imagine this attitude playing itself out over a period of decades. How in the world can we accomplish anything important when we shut our minds to new information?
There is a persistent narrative in American culture that attributes great success to innate ability. Yet, on close examination, it does not align very well with the underlying facts. As Dweck note, the contributions of the world’s most iconic geniuses -- Edison, Darwin, Mozart, etc – were not flashes of brilliance. Rather, they were the product of years of focused labor and learning, often in relative obscurity. These are the habits of the growth mindset.
When I first read Dweck’s research, my mind went back to that first year of law school and my persistent worry about whether I had enough innate ability to be successful. Legal education makes a great case study for Dweck’s ideas because the student population is filled with people who have done very well on standardized tests and other academic pursuits. Because of the years of praise and reinforcement for being smart, gifted, advanced, etc., we are the most at risk to believe that we won the genetic lottery. So rather than provide our classmates with disconfirming evidence of our abilities—at least relative to them—we keep our heads down, take notes, and hope we don’t get called on. We hope that the end of semester grades will validate our ability. But what about learning?
Since law school, I have always been amazed by the propensity of lawyers and law professors to over-generalize from academic performance. There are so many facets to effective lawyering that are never touched on during law school—interpersonal skills, teamwork, client communications, resilience, leadership, followership, etc.—and so many years of focused effort ahead just to obtain the requisite technical skills and knowledge to become a true expert. Academic performance only accounts for a tiny proportion of one’s ability to run a lifelong marathon. So the important question is, “what else matters?”
In various research projects over the years, I have reviewed personality and achievement motivation data on hundreds of lawyers. To date, the single best predictor of high performance is “fearlessness”, which is the willingness to take on difficult tasks and not be worried about failure or being judged by others. Something tells me these lawyers have managed to shed the fixed mindset.
My single favorite example of a lawyer with the growth mindset is Fred Bartlit, a renowned trial lawyer and name partner in the Chicago litigation boutique, Bartlit Beck. Over his 50-year legal career, Bartlit has tried several hundred civil jury trials to a verdict, winning a disproportionately high percentage. Several years ago, I sat next to Fred at a dinner and asked him if he ever impaneled mock juries to help prepare for a trial. Without missing a beat, he replied, “My last jury trial [where several hundred million dollars were at stake], I hired and ran eight mock juries.”
Now think about that. Bartlit is in his mid-70s. He is extraordinarily wealthy. He has more trial experience than anyone else in the country. Clients and fellow lawyers are convinced he was born with a natural talent. And Bartlit has the humility, patience, and objectivity to wade through feedback from eight mock simulations, locate all his errors, missteps, and weaknesses, until he is satisfied with his level of preparation. So I asked, “What happened?” Fred replied, “We won.”
Bartlit’s story suggests that excellence is, at least in part, a choice. And when we attribute someone else’s success to innate talent, we may be subtly trying to explain our situation and choices. How hard are we willing to work to become an excellent lawyer? Are we ready to identify and embrace our errors and weaknesses? When we adopt the growth mindset, we trade in our excuses. It is not for the fainthearted.
The Inferiority Complex of Law Schools
[by Bill Henderson, originally published in The National Jurist, March 2012 (PDF)]
For over a century, law schools have suffered from an inferiority complex. We have masked it well, but its consequences are finally coming home to roost. Like most psychological conditions, our lives will be much better and healthier when we deal with its root cause. Further, when law students understand this history, they will better understand the changing nature of the legal economy. They can even help law schools with the cure.
In 1918, the renowned economist Thorstein Veblen famously quipped, “the law school belongs in the modern university no more than a school of fencing or dancing.”
Veblen, like many of his academic colleagues, believed that universities should be citadels for science-based learning and the production of knowledge. Law, in contrast, was a trade. Indeed, in the early 1900s, a substantial portion of the practicing bar had obtained their skill and knowledge through office apprenticeships. When law schools did begin to appear, they were just as likely to be proprietary law schools operating out of a local YMCA than to be part of an established university.
Despite the skepticism of the academic class, there were a host of practical reasons for universities to create (or, in some cases, acquire) a law school. First, the law was the primary occupation for many elected officials, which held out the prospect of reflected glory. (Veblen recognized this motivation, which compounded his worry.) Second, a handful of law schools at prestigious universities had begun adopting the so-called case method, which purported to find objective legal rules and principles akin to a scientist working in a laboratory. The perceived rigor of the case method provided at least a veneer of science. Third, with their large lecture halls filled with tuition-paying law students, law schools made money.
So, notwithstanding the doubts or hostility of academics like Veblen, the university-based model of legal education became the norm. To further legitimate law as an academic discipline rather than a trade, university administrators often sought out a dean from Harvard or another elite school to signal their commitment to the “modern” case method. Eventually entire faculties were populated by elite law school graduates; in turn, the practitioner-as-teacher became a dinosaur and gradually withered away, eventually reemerging as the adjunct professor.
Once fully inside the university, law schools adopted university norms, including promotion and tenure based on scholarly production. Today, the tenure files of law professors are evaluated using the same basic standards of peer-review that apply to all university professors. And a hierarchy has emerged, based largely on the natural sciences, which runs roughly as follows: theoretical scientist (think Einstein); lab scientist (testing Einstein’s theories); applied scientist (the engineer who uses lab-based insights to solve real world problems). Most law schools tend to have an analogous pecking order that runs: tenured/tenure-track faculty, clinicians, adjunct/practicing lawyer.
Yet, echoing the concerns of Veblen, on one crucial level the parallels between science and law inevitably breakdown. The work of university researchers continues to exert tremendous influence on the skills and knowledge of engineers and other applied scientists. For example, when Einstein discovers the theory of relativity or Francis Crick and James Watson discover the structure of the DNA molecule, entire fields of science can be revolutionized – more to the point, the work of applied scientists is simplified and made more potent. Quantum leaps, often born in a university environment, are possible. Indeed, some might call it the goal.
The same paradigm shifts occasionally happen in the social sciences. For example, in the last forty years, the research of psychologists Dan Kahneman and Amos Tversky have forced a re-conceptualized of the most fundamental principles of economics, giving rise to an applied field of behavioral economics that has immense practical value. (Note: some academic economists are still in denial over this development.)
In contrast, a large proportion of judges and lawyers readily admit that the writing of law professors—the enormous output of student-edited law journals -- has little or no relevance to their daily work. Instead, a more practice-oriented literature has emerged in so-called “bar journals.” These articles are written by and for practicing lawyers.
During the 1970s and 80s, the eminent researcher and educator Donald Schӧn began to notice how professional schools, including law schools, had maladapted themselves to the conventions and expectations of modern universities. In the muck and chaos of real world problems, practitioners such as lawyers, architects, urban planners, or psychotherapists seldom have the benefit of new scientific knowledge that can solve the complex needs of their clients. Although the work of lawyers can often be highly analytical, it is also very human and influenced by emotion, culture, politics, power dynamics and a host of other seemingly random idiosyncratic factors. (For a more complete discussion, see Schӧn, The Reflective Practitioner (1983); Educating the Reflective Practitioner (1992)).
Schӧn gradually came to the conclusion that the science-based hierarchy of the university could not be usefully applied to a substantial number of professional schools. This is because professionals who achieve practice mastery (the $1000/hour technician; the trusted legal advisor; the highly successful plaintiffs’ lawyer; the brilliant government regulator, etc.) are essentially crafting novel, ad hoc solutions to extremely complex problems. To do this effectively, they must draw upon their own immense reservoir of learning, practical experience and intuition. University learning from law, economics, psychology, history, anthropology, and the hard sciences are mere inputs to the lawyers’ solutions. Almost like alchemy, these inputs are combined with decades of exposure to novel fact patterns. The outward manifestation is what some might call expert intuition.
All of this analysis leads to one conclusion: Legal practice mastery is a mixture of a science and art. Further, the artistry component is the most crucial element for solving real world problems, and it can only be obtained through an iterative process of experience and reflection. Unfortunately, we law professors are prone to reject, or at least discount, this formulation because it undermines the perceived gravitas of our academic learning and accomplishments.
Personally, I would rather be on the right side of history than the right side of a self-interested argument. I am ready to concede that many of my former students, who have been practicing for several years now, are much better at solving practical client problems (purely legal or a mix of legal and human) than I am. Yet, as a law professor, I still think that I can add value. But only to the extent that I connected to the world of practicing lawyers and thus can fashion frameworks and broker relationships that can help my students more quickly make sense of the muck and chaos of their future professional lives.
Outstanding lawyers are a public good. They help solve society’s most serious problems. I want to do my part to make more of them. It is time that the legal professoriate shakes off the inferiority complex that the practice of law is mere trade. At the same time, we also need to build bridges with the practicing bar – particularly our own alumni. This re-allocation of time and priorities may come at the expense of some the arcane scholarship that we now produce in order to maintain perceived parity with other parts of the university. At this juncture, we have the gravitas and experience to make the transition. Our students will be the primary beneficiaries.