On the idea of usefulness: NY Times skewers law schools' distance from day-to-day legal profession. Do you agree?

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.

Segal offers a new articulation of an old, old debate about the value of education. It’s a disappointing piece, written by a very good journalist. (And an admirably productive one at that.)  

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. 



 

Andrew Feinstein's book on the global arms industry draws strong reviews

 

Last month, I wrote a piece about sometimes seedy intersection between the legal profession and global money laundering for the ABA Journal, and came away from the reporting feeling a little amazed at the ease with which dirty money can be cleaned up by unscrupulous professionals who appear to be just doing their job.

But a new book out last week, and heavily reviewed in the U.S. and in England, pulls back the veil on an even uglier world, and one in which politics, law, business and war mingle to do tremendous harm. Andrew Feinstein’s The Shadow World: Inside the Global Arms Trade is prompting hand-clapping in the Post, the Telegraph, Bloomberg Businessweek and elsewhere. And judging from the reviews it’s easy to see why. (Feinstein previews his book in the video above, made available by his publisher.)

In short, those reviews have made it a book I want to read immediately. And the reviews are of the kind that are perfect for the kind of work we plan to highlight on this Book Smarts blog, which is itself a placeholder, and later a complement, to the real work of Legal Book Smarts. That is, we’ll soon be publishing literary book reviews of our own, the result of work we’re undertaking to match the best reviewers with the best books on the law that we can find. 

The business of that, well, business is ongoing. And meanwhile, we’re highlighting works like Feinstein’s because it strikes us as an important book, and one that has already attracted thoughtful and illuminating reviews.

Our reviews will be different than these, as they will be longer and designed to be standalone statement not just about the books in question but also about the underlying conditions or themes that the author has tried to illuminate. We expect our reviews will be read for their own sake, and cant wait to expand the content of this blog to include the paid content that will be its raison d’être.

For now, though, let’s focus on the smart contributions of other reviewers, who have taken different approaches in sizing up Feinstein’s work.

Bloomberg Businessweek’s Robert Baer, for instance, focuses on the impact corrupt arms deal have on the purchasers of the arms – usually governments – who end up with faulty armaments and dangerous military vulnerabilities that don’t show up on war plans.

That’s an interesting angle that is often lost in the hand-wringing over corruptions. The grafters themselves often are doing more than stealing their nation’s blind, they are imperiling its very existence.

The more compelling angle of the book deals, however, with the way the huge profits in war munitions translates to pressure toward “perpetual war,” as former Pentagon official Chuck Spinney writes over at TIME.com’s Battleground defense policy blog. 

John Tirman, writing for the Washington Post, leads off with a frank admission: “The way weapons large and small flow from the United States, Britain and other producers to the world’s villains is ever astonishing.”

He continues:  

Feinstein “gives us a sweeping and troubling story of how this happens, who benefits, and what consequences follow.

It is troubling because we have been at it for so long — the United States has been easily the largest arms exporter in the post-Cold War era — and still can’t seem to learn the ABCs of the arms trade: (A) the weapons we produce and sell or give away very often fall into the hands of people who want to use them to shoot at us; (B) the networks of arms merchants are also attracted to other forms of illicit commerce, like nuclear materials, drugs and human trafficking; and (C) the purported benefits of sustaining the “defense industrial base” by exporting weapons are grossly exaggerated. Yet none of these sturdy facts deters policy makers of all political persuasions from pushing lethal technologies onto petty tyrants and intermittent allies in Africa, the Middle East, Central Asia and indeed just about everywhere else.

Take a look at the book and join me back here. Because we’re interested on this site in books that help illuminate the law and the men and women who breathe life into it, I’ll be looking especially for the way the book tells the stories of the investigators who have dug into the money trails and exposed the criminals that sell these weapons.


 

Obama and the Court: We've been here before, says Stanford professor in review of two new books on FDR-era justices

Now that the Supreme Court has announced it will, as expected, wade right into the 2012 presidential election with a ruling next summer on the Affordable Healthcare Act, it’s no surprise that legal writers everywhere are thinking back to 1937. 

That’s the year that high court ended its emnity to Franklin Roosevelt’s New Deal activism, issuing its famous decision upholding national regulation of labor relations in NLRB v. Jones &Laughlin Steel Corp. It was the famous “switch in time that saved nine,” and signaled a victory by the President as and the progressives on the court who had been fighting for years against the dominant view that the power of Congress to regulate economic activity as enshrined in the Commerce Clause of the Constitution was so narrow as to forbid reforms like minimum wage laws, industrial regulation and the like. 

The Pittsburgh-based steel company involved was massive — with nearly 100,000 miners of ore, coal and limestone, more than 350,000 manufacturers and 83,000 drivers and others to transport the goods — and it had fired workers at its plant in Aliquippa, Pennsylvania for helping organize a union.

The case was important for labor unions, but its place in our imagination these days stems from the role it played in ending Roosevelt’s frustrations with the court, and doing away with his supremely suspect plan to pack the court with cronies by growing it by as much as 15 justices.

Stanford law professor Robert W. Gordon takes up these issues and more in the December issue of the New York Review of Books. He reviews two new books — one about the court-packing plan in 1936 and one about the “great justices” of the New Deal-era court — in a piece entitled, appropriately, How the Justices Get What they Want.

It’s interesting history, made all the more relevant by the justices’ pending decision on President Obama’s signature initiative (for my early take on what’s at stake there, read this February piece from TIME). In that decision, the court will encounter its own fault lines over questions of legitimacy, its own political divide — as sharp now as ever — and its ideological differences of the justices.

Which set of influences will prevail is anyone’s guess at this point, but reading Gordon’s take on these two new books should help sort out the historical context of the court’s relationship to progressive legislation.

The books reviewed are available below. 

Supreme Power: Franklin Roosevelt vs. the Supreme Court
by Jeff Shesol 
Norton, 637 pp., $18.95 (paper)                                                  

Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices
by Noah Feldman 
Twelve, 513 pp., $30.00