On the New York Times and Legal Education
posted by Daniel Solove
Much has already been written about David Segal’s article in the N.Y. Times, What They Don’t Teach Law Students: Lawyering. I join the strong critiques of this piece in condemning it as a lousy piece of journalism — more of a one-sided hack job, riddled with errors. It belongs on the op-ed page of a trashy paper.
Segal seems to believe that if law professors just wrote less theoretical scholarship and if law schools taught more skills, then suddenly, the legal market would become a bonanza once again for law students. The problem with this argument is that a theoretical education and scholarship by faculty does not seem to have much connection to a student’s success in the job market. If this were the case, then nobody would hire Yale Law School graduates.
But Yale Law School graduates are doing quite well in the legal marketplace, which demonstrates that despite all the grumblings we hear about too much theory being taught, legal employers are not behaving consistently with what they are saying.
I also think Segal’s article paints a very false picture of legal education — there’s a lot of theory, but there’s also a lot of practical skills taught too as well as practical scholarship and law professors very involved in legal practice and policymaking. One needs only to look at the many law professors who took leaves of absence from their law schools to work in government. Countless members of my faculty have submitted briefs and argued cases.
Beyond this point, theory is not an irrelevant waste of time. It is essential to practice. True, there are lawyers out there who are nothing but glorified mechanics, but the best lawyers are often ones who think deeply, who are interested in legal scholarship and ideas,. It is easy and glib to just brush aside all legal scholarship as “irrelevant theory” but this seems to be just an excuse for laziness. There are a lot of great scholarly pieces out there. With anything, there’s a lot of bad stuff too. I could readily find many practicing lawyers who aren’t very good. That doesn’t mean that all aren’t good. A member of the profession would say: “Take a closer look and consider the best practitioners before you rush to judgment.” The same holds true for legal scholarship. It is far too easy to make glib generalizations and find one piece with an obscure title to illustrate the point.
There are certainly problems with legal education. But when the thoughtful points being raised by Brian Tamanaha and others are misunderstood by ill-informed hacks, the discussion devolves into irrelevancies, and there isn’t a productive conversation about how to solve legal education’s problems. There has been a lot of criticism of legal education of late, and although some of it is justified, it is important to note that a law school education actually is a good thing for many people. There are a number of unfortunate cases where students would have been better off without having gone to law school. But we shouldn’t forget that there are also many success stories — students who went to law school and got the jobs they wanted. Students should be given a more realistic picture going into law school — there’s no guaranteed pot of gold at the end — but there are students for whom law school is not a good investment. It is a problem to entice students to law school when it isn’t a good investment, but it is also a problem to dissuade students for whom law school is a good investment.
November 24, 2011 at 11:51 pm
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Responses (10)
Joey - November 25, 2011 at 4:16 pm
Also, it is worth noting (as I think Brian Leiter did) that the particular example David Segal chose of an overly obscure law review article was not a law review article at all. It was a philosophy article, by a philosophy professor, in a philosophy journal. (For all that, it actually was relevant to some legal questions anyway!) But it was hardly an illustration of what law professors spend their time writing. And while one should not read too much into any one error, that one was a whopper that certainly makes the author look awfully careless.
Ken Rhodes - November 25, 2011 at 8:28 pm
Joey, I’m not clear on what article you’re referring to.
When I googled the “Future Foretold” article, I found it in the Brooklyn Law Review, written by a law professor (in a titled chair) in the UNLV Law School.
Joey - November 25, 2011 at 9:35 pm
I was referring to the other obscure article — Segal writes, “Some articles are intra-academy tiffs that could interest only the combatants,” and cites an article titled “What Is Wrong With Kamm’s and Scanlon’s Arguments Against Taurek” from The Journal of Ethics & Social Philosophy.
As Leiter notes in this post, “The Journal of Ethics and Social Philosophy is not a law review, it’s a peer-reviewed philosophy journal. And the article in question is written by a philosophy professor at the University of Vermont. And it concerns arguments by three philosophers: Kamm, Scanlon, and Taurek. So what in the world does this have to do with what’s in law review articles? Nothing.”
The Philosophy faculty at the University of Vermont must be scratching their heads as to how one of their assistant professors of Philosophy became the poster child for the uselessness of law professors’ scholarship.
Ken Rhodes - November 26, 2011 at 5:23 am
OK, thanks.
And now I have to chuckle, too, at the outrage against a philosophy professor writing an article about an obscure philosophy topic for an academic philosophy journal. Hmmm…what did Segal suppose a philosophy professor was *supposed to do* with his time?
Bob Loblaw - November 26, 2011 at 2:49 pm
I respectfully disagree with your post. A couple of points:
Daniel Solove: “The problem with this argument is that a theoretical education and scholarship by faculty does not seem to have much connection to a student’s success in the job market. If this were the case, then nobody would hire Yale Law School graduates.”
I think this ignores the immense value that the Yale brand has, for reasons completed unrelated to what is taught there. As Justice Scalia has said “The best minds are going to the best law schools. They might not learn anything while they’re there, but they don’t get any dumber.” So even if Yale’s teaching was horrible, I’m not sure you’d expect to see a change in employment.
Daniel Solove: ” It is easy and glib to just brush aside all legal scholarship as “irrelevant theory” but this seems to be just an excuse for laziness…There are a lot of great scholarly pieces out there. With anything, there’s a lot of bad stuff too. I could readily find many practicing lawyers who aren’t very good. That doesn’t mean that all aren’t good.”
I happen to be on the editorial board of a T14 law school’s law review, so I have to cite check and read articles regularly. Of those I’ve read, I can’t think of a single one I thought would be useful to a practicing lawyer. The problem is, in my experience, most seem to advocate a fundamental change in philosophy to an area of law that diverges from what precedent would suggest. To me, this seems extremely unhelpful, because A. Lower courts aren’t likely to accept a grand new theory that seems to contradict what SCOTUS is saying, B. As far as I can tell SCOTUS seems not to usually change its theory either, and C. I don’t think most policymakers tend to read law review articles.
This leads me to be inclined to believe that most law review articles are useless. Are you saying my sample is unrepresentative of what’s out there? Or do I simply have a narrower definition of usefulness? Could you perhaps suggest some articles from the past year that in your mind represented useful legal scholarship?
Jerome - November 26, 2011 at 6:05 pm
The more times name calling is employed in an argument, the weaker the author subconsciously understands their position to be. This post is an excellent illustration.
PG - November 27, 2011 at 6:10 pm
“This leads me to be inclined to believe that most law review articles are useless. Are you saying my sample is unrepresentative of what’s out there? Or do I simply have a narrower definition of usefulness? Could you perhaps suggest some articles from the past year that in your mind represented useful legal scholarship?”
I think your sample may be unrepresentative. I was on the editorial board of a journal of gender and law (what many people doubtlessly would consider *extremely* useless), and frequently read articles that had practical applications: an explanation of how prosecutors could handle domestic abuse cases post-Crawford; debates about workplace behavior patterns that might be deemed harassing; a critique of how the federal law supposedly intended to reduce prison rape failed; a critique of how U.S. trade treaties in South America failed to address the problem of pregnancy discrimination… that’s just off the top of my head. The most theoretical article I remember is one that considered ways to gain redress for “street” harassment, which probably is impossible but is certainly a real problem for which people would like to find a solution.
MDF - November 28, 2011 at 1:48 am
I think Jerome makes a good point
K A Murphy - December 14, 2011 at 12:49 pm
Am I the only practicing lawyer posting here?
When your critics ask you to actually teach some *law* in law school, I think many of them are asking “Why not try teaching the statutes?” You know, those things that our congress is always voting and that our President sometimes signs and sometimes vetos??? The average person thinks of those things as THE LAW, and believe it or not, when you get out of school your clients will ask you how those pesky little things affect them and their businesses!
I think the pot-shot fired at Langdell and the socratic method, was aimed at the fact that you can get out of law school, after trying REALLY hard to develop a firm grip on a given area of law and still not know how to find a single statute in that area. That is why the NYT article refers to clients wanting 1st years who have been trained in the “regulatory state” — because law students should have a grasp on the basic anatomy of who can make binding rules in an area of law, what the major rules are in that area and what the major dispute resolution techniques are with that regulator.
“That’s impossible!” you say. “Teaching the statutes would be useless because the statutes change all the time!” say others.
Um, yeah, then why is that the way law is taught in every European country except England? Having gotten a French law degree and a US law degree — let me tell you, French law students don’t graduate unless that know some serious statutes.
“But that’s because it’s a civil law country!” you may object. And I am forced to roll my eyes and say “No, sorry, they also study lines of precedent to deal with the that law and they learn how statute interacts with judicial precedent over the course of decades. And at the end, they understand why statutary reforms happen and they are able to situate those reforms into a historical context.”
Now, pick your jaws up off the floor — I swear it IS possible to teach this much law. But first you need to know the law.
US law schools do not teach that way and US law professors literally have no idea what the regulations are (with the possible exception of tax professors). Instead, American lawyers are trained in “getting to maybe” — they are bullshit artists. But bullshit does not cut it when you are out in the real world with paying clients.
At my “top-ranked” law school, I took finance classes where we barely mentioned the ’34 Act — let alone learned its basic anatomy. I took banking law classes where we learned about the philosophy of money, but never touched on major banking law reforms. My Admin law class was great though — because it was taught by a visiting professor who had a day job as a litigor at DOJ.
But honestly — STOP HIRING PH.D’s!!!! For the love of god! A ph.d in economics can be a guest lecturer at a law school, but s/he should NOT be on the full time faculty!!! And Lietner’s reference to U of C hiring a “commercial litigator with five years of practice experience” almost made me laugh out loud!!! That is fucking pathetic! By year five you are just barely out of datarooms and researching your first brief. I knew a 4th year litigator who had drafted exactly one paragraph in one brief in her entire tenure with the firm — it was a footnote that contained a list of applicable treaties. And she was the partner’s favorite, with serious responsibility compared to everyone in her group.
Seriously guys. Law school IS trade school. And there is no way you can teach a trade you don’t know.
K A Murphy - December 14, 2011 at 12:57 pm
and are you *serious* with your snide: “just an excuse for laziness”?
When was the last time you slogged your way through an actual law? Dodd-Frank, anyone? Sarbanes-Oxley? It’ll take you 6 seeks just to skim though those mother-fuckers and years to really understand them.
“laziness”!?!?
pfuh — kiss my ass.
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