Thursday, February 24, 2011

Law schools have gone astray and only by reconnecting with the needs of the practicing bar can they be saved

Based on this excerpt, that seems to be the premise of this forthcoming book by Walter Oslon, a Senior Fellow at the Cato Institute and author of the blog Overlawyered, called Schools for Misrule: Legal Academia and an Overlawyered America. According to the excerpt, the author traces the history of American legal education from a business school-like model that prepared students to make a living in their chosen career to theory-driven institutes focused almost exclusively on the pursuit of scholarly prestige and academic ranking:

In a law school fully oriented toward an academic model, certain things are expected. Not only will full-time faculty members beneeded, but those faculty will need to engage in scholarship. So the rapid rise in the ranks of faculty was sure to lead to a boom in research, conferences, and the output of law reviews, of which no self-respecting law school could afford to be without a few. "Law reviews are unique among publications," explained Northwestern's dean Harold Havighurst half a century ago, "in that they do not exist because of any large demand on the part of a reading public. Whereas most periodicals are published primarily in order that they may be read, the law reviews are published primarily in order that they may be written.

. . . .

There is a limited supply of the sorts of creme-de-la-creme students who can engage in round-the-clock discussions of policy and political philosophy while also cribbing the standard law school curriculum in odd hours. And so quite evidently most law schools are destined to fall short if they try to be Yale. Yet powerful forces influence them to make a show of trying anyway. The upshot is that School #77 in the U.S. News standings feels obliged to do its best impersonation of a little Yale, complete with interdisciplinary centers, globetrotting star professors, and unreadable theoretical output. The accreditation pressure to adopt more academic models also played a role here, as did faculty's own wish to move up to more demanding and highly ranked institutions.

. . . .
The underlying problem is that legal education in America--- much more so than, say, medical education---arranges itself according to an exquisitely calibrated and widely agreed-on hierarchy of quality and status. The student with an indifferent record from a low Tier I school will come into opportunities unavailable to the student with a sterling record at a high Tier II, let alone a Tier III. The decisions made by all the involved parties help reinforce the stratification process. Applicants tend to sort themselves among schools with great efficiency by following the oft-given advice to enroll in the highest-ranked school at which they are accepted, whatever its geographic or financial pluses or minuses. In turn, the ranking of schools depends heavily on the test scores of the students who attend, so schools that have recently done well tend to continue to do well. School administrators themselves, whatever their declared devotion to egalitarian ideals, are supremely aware of the status distinctions, and generally act as if their prime goal in life were to maximize their rank in the standings, with not a few of them engaging in rather grubby dodges and cheats to inflate their U.S.News standings. . . . . A tiny slip in the rankings can spell heartbreak for administrators; a minor advance can help make a career.
. . . .

Equally significant, the unmooring of law schools from the actual world of law was being noticed outside the walls. "Law schools and law firms are moving in opposite directions," observed the federal judge Harry Edwards in a widely noted 1992 speech. He added that "many law schools---especially the so-called 'elite' ones---have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and pedagogy." Practicing lawyers were losing the benefits of the ethical as well as operational guidance that a more down-to-earth legal academia might have offered.

Matters have improved in the decade or two since then, and the credit should go not only to highly visible critics like Kronman, Sherry, and Edwards but also to an unsung body of critics, namely students themselves. All along, in their evaluations and course choices, they had exerted a clear preference for the grounded over the airborne, for black-letter law over ideology, for mastery of useful skills and topics over arid metaphysics. Say what you will about careerism, but it just might have saved the day.

You can read the rest here.

Hat tip to Stephanie West Allen.


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