Saturday, June 19, 2010

My "Dean Speech" on the Future of the Legal Academy

Posted by Jeff Lipshaw

Faculty_Wasserman,Howard The always insightful and interesting Howard Wasserman (FIU, left) provoked a discussion over at PrawfsBlawg on "student centered" teaching that, in the comment thread, turned into that ancient debate about all those theorist law professors at odds with their practical minded students.  I posted a comment, responding to "Vladimir" and "BL1Y", that I thought was worth re-posting here.  I think, as a long time practitioner AND law professor (me) interested in highfalutin' theory (that is, given my odd background, I think I could teach a jurisprudence class, a trial skills class, and a transactional skills class), I have some credibility on both sides of the issue.

How the legal academy came to its present configuration wasn't the result of some logical exercise, but a matter of historical happenstance. That's not uncommon. Most intractable social and political realities arise that way (see Northern Ireland or Israel-Palestine). The reality now is that you are both correct in your fundamental observations: there IS a gap between what most law students want (unless they go to Yale) out of their educations, and what most law professors want out of their careers. It may well be that something like the financial crisis of the last couple years, and the shrinking of big law firms engenders a complete restructuring of the legal academy into a Ph.D. like "department of jurisprudential studies" with its place in the College of Arts and Sciences, and more trade school like professional schools, but I doubt it for two reasons that undercut both polar positions.

1. Law professors can't merely be theorists and have their gravy train survive. What allows so many law professors to engage in theory is the fact that their students who have little such interest fund the theoretical pursuit. First, law schools are notorious cash cows. When is the last time you heard of anyone organized a proprietary or for-profit sociology department? The cost of providing the education, unlike in the hard sciences or med schools, is relatively low compared to the market price of the tuition. Second, it's the salaries in private law firms that by and large set the benchmark for law professor salaries. Even if you take a pay cut to move into academia from the big law firm that is the typical immediate pre-professor job, you aren't getting paid like an assistant professor in the English department.

2. Law students don't REALLY want to be trained in the legal equivalent of the barber college or truck driver school. While law students may get frustrated with the theory often foisted upon them by their professors, the present paradigm in the academy (and, honestly, this preceded the influence of US News, because the elite schools in US News were the elite schools when Bob Morse was still wearing short pants), they show over and over again that they are significantly influenced by the brand of the law school, regardless of the specifics of the pedagogical program. And the brand, as the institution of the legal academy has developed, has a lot to do with all that theoretical stuff law professors are churning into law review articles. I'm not arguing that is good or bad (although I wouldn't be a law professor just to teach; it's the theory that floats my boat after all those years of practice); it's just the reality. Seriously, tell me that a rational student, faced with the choice of Stanford or UCLA, with all those practice-challenged theorists, or an excellent "skills-focused" third or fourth tier school, and no significant difference in tuition (see point 1) (and maybe not even then, but that's an interesting econometric question), wouldn't choose Stanford or UCLA?

My "dean speech" (that nobody has asked me to give) is that this is an intractable polarity that the profession is simply going to have to manage by way of leadership that provokes empathetic perspective at both poles. The poles aren't coherent, and there is no rule of nature that says they have to exist, much less coexist. But they can, just like lots of polarities, continue to coexist. Faculties simply have to make concessions to the concerns and needs of students or their gravy train is going to disappear; students and alumni are going to have to acknowledge the driving forces of academic prestige and advancement, or they are going to lose that patina (and brand, and earning power) that comes with a law degree other than from ITT Tech, DeVry (which owns a med school on the island of Dominica, "a lush, classically Caribbean environment"), or the University of Phoenix, all of which would be perfectly capable of offering what BL1Y wants (InfiLaw already does).

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The issue is really not that complicated despite your best efforts to make it so. We are not asking for law schools to be converted to plumbing institutes. But what we are demanding is that the persons who teach law students and have the responsibility for training future lawyers have had substantial experience in the practice of law in the subject areas they teach. Without such experience their effectiveness is seriously undermined. Theory can be a useful adjunct to basic practice fundamentals in expanding areas of inquiry but standing alone cannot suffice. Sadly, virtually every law faculty in America consists of academic theorists who bear no connection with the real practice of law.

Posted by: Donald Dobkin | Jun 20, 2010 6:54:18 AM


Posted by: Former Big Firm Partner | Jun 24, 2010 7:50:17 AM

What I think a lot of professors tend to ignore in the theory v. practice debate is that law school is 3 years long, and students will take 20-24 classes. We can keep the import theory classes, such as the first year core classes and con law, but replace things like Law and Literature or The Trial of Jesus with more useful, substantive classes, like Advanced Legal Writing for Corporate Attorneys. Even theory-driven classes on more substantive matters would be useful, like securities and procedure and all that other stuff people deal with out in the real world.

I don't think any professor can, with a straight face, say there isn't room to add more substantive, practical education when we still have classes such as Law and Culture in American Film, or "The Past and Future of the Left," a class at Harvard which is, honest to God, about how to stop in-fighting in the Democratic party.

Posted by: | Jun 25, 2010 4:13:02 PM

BL1Y, that's the program Larry Kramer has instituted at Stanford. (Full disclosure: it's my alma mater, I contribute a fair amount of money, and I think Larry Kramer is a great dean.) The concept is that the first year of law school still works; it's the second and third years that are problematic. I don't take your comment as suggesting that the highly academic classes be eliminated, but that students have the opportunity for a more practice-oriented education. What Stanford is doing is to create many, many cross-disciplinary practice-related opportunities, using the resources of the rest of the university, like the business school and the med school to provide the client-lawyer context as a matter of training and education. It seems to me if that opportunity is available, and a professor want to offer, and students want to take, Feminist Critiques of the Justinian Code, that's all okay.

My point in the post was about leadership, and that's what Larry is providing. Remember, he's a constitutional scholar, and yet he's fully on board with the need to educate lawyers to go out into the real world of the 21st century. As you can tell, I'm a big fan.

Posted by: Jeff Lipshaw | Jun 26, 2010 7:12:09 AM

Students might be interested in taking Constitutional Thought of Alexander Hamilton (actual class at Stanford this fall). But, they might also be taking it because seminars tend to have pretty significant grade inflation.

Or, they might have wanted to take a class in securities, mergers and acquisitions, corporate tax, contract drafting, complex litigation, antitrust, or evidence, but have to settle with Constitutional Thought of Alexander Hamilton, because Stanford doesn't offer a class on any of those subjects in Fall 2010.

Dean Kramer may be fully on board with the idea of preparing law students to go out into the real world. But, there's a huge difference in being on board with something and actually getting it done. I'm fully on board with the need to diet and exercise, but today I'm probably not going to exercise because I'm too hungover (we'll see how I feel after a few enchiladas.)

Number of faculty at Stanford by subject area:

Race and the Law: 7
Bankruptcy: 1
Legal History: 8
Alternative Dispute Resolution: 1
Law and Society: 5
Trial Advocacy and Skills Training: 1

Posted by: | Jun 26, 2010 8:19:26 AM

Cmon, BL1Y, we're going to have to change your moniker to BS1Y. Don't let bitterness impact your skills as a lawyer. One of the things Stanford does is keep the class small (~150), so you aren't going to get every class every semester. Indeed, you need to look at offerings on two year cycles. We don't offer antitrust and securities at Suffolk every semester and we have 500 in each class.

So, let's see, if you want a practical education, and you are a Stanford student, in the fall of 2010 you can take, among other things:

ADR - Law, Practice and Policy
Advanced Legal Research
Commercial Law Clinic
Corporate Governance Practicum
Corporate Finance
Environmental Law Clinic
Environment & Energy Workshop
International Deal Making
International Mergers
Organizations and Transactions Clinic
Real Estate Transactions
Taxation I
Trial Advocacy

In the winter 2011, you can take:

Administrative Law
ALW: Business Transactions
Capital Markets
Commercial Law Clinic
Complex Litigation
Corporate Acquisitions
Corporate Governance Practicum
Deal Litigation Seminar
Deals I
Employment Law
Environmental Law Clinic
Federal Pretrial Litigation
Federal Courts
Food & Drug Administrative Law
Local Government Law
Partnership Tax
Patent Litigation Workshop
Regulated Industries
Secured Credit
Securities Litigation
Sports Law
Tax Policy
White Collar Crime

Posted by: Jeff Lipshaw | Jun 26, 2010 4:22:20 PM

Looking at classes on a two-year cycle creates very misleading "opportunities."

Enrollment in many law school classes is determined by lottery because there are more people who want to take it that seats available. Generally 3L students get priority over 2L students. So, if a class is offered only once every 2 years, and that year happens to be your 2L year, you won't be able to take it. Even if it is offered during your 3L year, if it is particularly popular, you still may not be able to get in.

The fact that enrollment caps exist is pretty much prima facia evidence that some students won't get the classes they want to take. I can't think of any other industry where I can pay $44k a year and have what I'm getting be left up to lotteries, enrollment caps and scheduling conflicts.

It would be interesting to see a lottery work in reverse. Stanford could post a full listing of every class it ever offers, students would pick the schedules they want, and then classes that got enough votes would be offered. I know at NYU if things worked this way, Negotiations would probably have been offered twice a semester rather than once a year.

Posted by: | Jun 27, 2010 8:28:37 AM

A little bit off topic, but you might find this interesting:

"The most crucial challenges for our society and our profession involve issues of leadership; the need for leaders with vision, integrity and wisdom has never been greater. Yet our system of legal education does little to produce them."

Three guesses who said it?

Director of the Stanford Center on the Legal Profession, Deborah Rhode

Posted by: | Jun 28, 2010 6:53:59 AM

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