This blog is about the law and what’s written about it, with a focus on the best books being published about the profession and the men and women who make bring it alive. But can a focus on ideas, and on scholarship for instance, really be important to a profession that is in the midst of an economic crisis?
That’s a question that flows from reading a long article this morning in The New York Times, in which journalist David Segal offers a critique of law schools that finds they are too removed from the profession precisely because they focus on ideas and “thinking about the law” at the expense of offering practice tips.
Many years ago there was a governor of Kentucky who made his reputation, first, as a champion of the state lottery and public education reform and then, to a smaller degree, on his willingness to say what many people felt: Professors at the state’s public universities spend too much working on obscure articles for “itty bitty journals” and not enough time teaching.
His name was Wallace Wilkinson, and he died bankrupt and scandal-tainted nearly a decade ago, but the Kentucky lottery is a fact of life in the Blue Grass State and his assault on the academy has rarely had as much support as it does now.
His full critique was that professors were paid too much to spend their time “just doing research and writing letters to each other in itty-bitty journal.”
The comments prompted a firestorm of controversy, but old WW, who made his fortune by selling college textbooks, would be pleased to see his critique alive today.
The debate over how professors should spend their time took center stage in recent years in Texas, where millionaire Jeff Sander, a Harvard business school grad and friend of Gov. Rick Perry, has clashed with traditional academics over what he calls the a “pedagogy of arrogance.” (Sam Gwynne and Gary Jacobson are the ones to read on this.)
It’s all part of an age-old debate about the value of an education: To equip one success at a job, or to provide a broader set of skills that, with additional hands-on training, will make you a better citizen, more critical thinker and – one would presume, though I am not sure we can trust the evidence on this – a happier person. It’s also a variant of an older question, whether an active life is superior to a contemplative one, a struggle that dates back to Plato and Aristotle.
But Segal’s article simply accepts that law schools would be more effective if they taught hands-on skills, like how to effectuate a merger by filing the appropriate form with the Secretary of State’s office, for instance. As proof, he notes that some innovative firms are spending months putting their new hires through basics boot camp before letting them bill a single client.
That this sounds reasonable, and hardly evidence of law school failings, passes without comment.
Practical training in law school was a great break from the heavy work in the classes taught using the case method, and I learned a great deal about negotiations, say, in my real estate transactions class. And I liked it a good deal more than the property course I had to take in my first year.
But it was hardly a substitute for the earlier course. And it was appropriately an elective, since many students had zero interest in learning about real estate law.
I could say the same for the trial advocacy class, taught by an adjunct.
But my experience, and that of many others, doesn’t support the conclusions of the Times’ article. Its conclusions baked into the piece, and the quotes from experts and critics seem handpicked to support those conclusions.
The writer concedes, for instance, that law review articles have been used in a third of recent Supreme Court cases – a pretty strong indication of their usefulness, one might conclude – but notes that almost all of those citations are to the most elite journals and to articles written by the most admired scholars.
Why that would surprise anyone is curious, and he seems to suggest that all the second- and third-rank scholars should simply quit trying, seeming to ignore the fact that not all top-ranked scholars start out that way.
A Houston attorney puts it this way in the piece:
“The fundamental issue is that law schools are producing people who are not capable of being counselor,” says Jeffrey W. Carr, the general counsel of FMC Technologies, a Houston company that makes oil-drilling equipment. “They are lawyers in the sense that they have law degrees, but they aren’t ready to be a provider of services.”
Well, of course not. Would you hire a freshly minted CPA to handle a big audit from the IRS? Welcome a brand new M.D. to operate on your spouse? No, you wouldn’t. You’d expect the account to get some experience, probably working at a big firm and under the supervision of his or her elders. And four years of medical school is prelude to a doctor, who must spend two to four years as an intern learning the practical skills needed to be a physician before being set loose on the public.
I write all this, not in defense of the most obscure research at law schools. Even Wallace Wilkinson was right in arguing that academic scholarship is often too remote to be of value.
And he is absolutely right that there is a disconnect between the tuition students pay and the value of their degrees. But this is a problem – and it’s a big one — with the university administration and not with the faculty or its research interests. The Occupy Wall Street protesters have focused on student loans for this very reason, and you don’t hear them complaining that their teachers are teaching the wrong things.
They are complaining that the schools charge them too much, and that they do it just because they know they can, thanks to the government’s support for student loans.
But the Times suggests that the basic orientation toward what Segal calls “theory” at the expense of more “useful” instruction is deeply flawed.
But is learning how to file the right paperwork at a state office to effectuate a merger really more “useful” than understanding the thinking behind the law and public policy that governs businesses, for instance? Isn’t understanding, say, how securities and anti-trust law has evolved out of the Progressive era and later the Great Depression more important than knowing which office to file your paper work in?
Of course it is. You can be taught the latter in 5 minutes, and what’s more, the lesson would need to be different for every group of students who planned to want to practice in a different state.
There are plenty of reasons why law schools are out of touch with their students and the profession, and some of the fault lies in its professors’ removal from it. That’s true, and Segal’s story is useful in the sense that it will focus debate on this and related issues.
But it would have been more valuable, still, had he been more careful about what he calls useful and what he presume is not. Summing up the entire other side of the debate, in a long piece like this, with a modest sentence deep into the piece isn’t, for that matter, very useful to a good understanding of the issues.
In closing, and in keeping with our focus here on the best the world of books has to offer, I’m thinkingi back to my own education, when it worked, as a history of teachers who open my eyes and fired my heart with the desire to learn. That, to me, is a bigger measure of whether law schools are working. Can their teachers inspire in their students the capacity to enter the world with a brain eager for new impressions, new skills, and new ideas.
It was after all the only redeeming quality in his own experience as a teacher at Harvard that Henry Adams cared to recall toward the end of his life. His words are worth recalling now. To find his take on his teaching career, go to the comments section.