The NYT on law teaching

Larry Ribstein —  20 November 2011

The NYT brings another David Segal story on legal education.  Today’s sermon: law schools don’t teach “lawyering.”

Boiling away the overheated journalism, here’s the indictment:  Law profs are richly paid for writing mostly useless law review articles rather than “the essential how-tos of daily practice.” Students study cases about contract law but not contracts.  Clinics get second-class status.  New lawyers need law firm training to figure out how to “draft a certificate of merger and file it with the secretary of state.” A law graduate isn’t “ready to be a provider of services.” Clients won’t pay for work by untrained associates.  Legal education is not worth its high price.

Well, yes, law schools should pay more attention to the market for lawyers and offer more value.  But as I’ve written in my article Practicing Theory, this doesn’t mean teaching what lawyers traditionally do.  Lawyers now don’t draft agreements from scratch.  There’s an app for that — software templates modified by user input.  A technological tsunami is sweeping over legal services.

Practicing Theory suggests that law schools should teach law students how to be architects and designers rather than mechanics.  The lawyers of the future will focus, more than today’s lawyers, on the building blocks of law. Computers and non-lawyers will handle the mechanical tasks. Training lawyers demands the sort of theoretical perspective that Segal disdains. 

Law students also will need business skills that law schools don’t traditionally teach.  Indeed, Segal himself notes that “graduates will need entrepreneurial skills, management ability and some expertise in landing clients” without considering the implications of this observation for legal education.

The real problem, as discussed in Practicing Theory, is not that law professors are teaching theory rather than the way to the courthouse, but that their choices of which theories to teach pay insufficient attention to the skills and knowledge today’s and tomorrow’s market demands. Segal’s article, like others in this series, ignores such nuance, preferring to string together well-worn criticisms and to eschew coherent analysis in favor of attention-getting quotes.

But, then, this is what journalists learn in journalism school.  Just as law professors swing for the law reviews, so journalists swing for the Pulitzers.  No wonder blogs are replacing the mainstream media as the source of cutting-edge information.  If you want to know what is actually ailing the legal profession and the law professoriate, you would do much better to read, e.g., Bill Henderson, Dan Katz, Brian Leiter, Brian Tamanaha, Steve Bainbridge and me.  It will save time and trees.

Larry Ribstein

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Professor of Law, University of Illinois College of Law

17 responses to The NYT on law teaching

  1. 

    Excellent post (and excellent comments, especially from Bill Carney). Segal’s NYT piece, like virtually all legal reporting by the New York Times (and, among many others, the Journal), is indeed low on insight. I have to believe that the entire article can be credited to Drinker Biddle’s public relations people–and justifiably. Drinker is among very few firms to take professional development seriously, investing in an innovative associate apprenticeship program with dollars most firms would reserve for year end partner distributions, a/k/a AmLaw ratings.

    Just as irritating, the Times comes bizarrely late to a conversation among lawyers, professors, consumers of legal services and legal commentators that has been ongoing for years, in one form or another, in the blogosphere (including Twitter, its most effective distributor). Ribstein observes that “blogs are replacing the mainstream media as the source of cutting-edge information”. To clarify, I would put it more broadly: Blogs and Twitter, with curation support sites (Hootsuite, Tweetbank, RSS, etc), have replaced mainstream print and online news media as the source of as-it-happens news and thoughtful, thorough opinion.

    I advise each of the younger lawyers and law students I know to identify and follow the smartest, most engaged curators of news and opinion (targeting, for networking and business generation purposes, strategic areas of interest). The mainstream journalist should do the same, using Twitter as more than an auto-post platform. But it may be too late to catch up.

    I appreciated Ribstein’s list of those who blog on “what is actually ailing the legal profession and the law professoriate”. But there are several critical people missing. If you want to understand the perfect storm faced by our chosen profession, learn from these individuals, and from those they recommend:

    Jordan Furlong: If I could follow only one blogger it would be Furlong, the Canadian legal futurist (blogging on Law21 with the tagline “Dispatches from a legal profession on the brink”). He is not only the smartest commentator on this topic but an elegant and prolific writer.

    Steve Harper: Steve is a brilliant and enjoyably irritable source of commentary on the history and current state of the law partnership business model. He blogs on The Belly of the Beast and (improbably enough) the American Lawyer.

    Both Carolyn Elefant and Susan Cartier Liebel have critical practical advice to offer the solo practitioner. Each boasts a rapidly growing following in the “cloud”.

    Among other excellent commentators: Bruce MacEwen (Adam Smith Esq.), on the business of law and everything else, and Ron Friedman (Strategic Legal Technology), on how outsourcing and commoditization offer a new model for the delivery of legal services.

    • 

      I agree with the need to take account of the lawyers Betsy lists, and others. My list focused on law professors and law teaching. These and other lawyers have had a great deal to say about the future of the law business, but less about its implications for legal education.

  2. 

    It’s rare that I disagree with Larry, but this is one of those times. He makes transactional lawyering sound like it’s fill in the blank from a checklist. Filling in blanks depends on choices on every blank, which often relates to choices made in earlier blanks. In short, lawyering is an art and not a science, and depends on the dynamics of negotiations and sometimes solving problems in novel ways. One must be subtle and perceptive in the nuances of negotiations and staying focused on the risks your client faces and what you can do to minimize them. Much of these skills are exercised under extreme time pressures during negotiations, which means practitioners must be highly skilled in making complex judgments under pressure. Few current academics are in a position to understand these issues, much less teach them.

    • 

      And I must post a rare disagreement with Bill. I agree completely that transactional advice is an art. The question is whether it must be done by lawyers, particularly as the actual drafting of the agreement is being taken over by software. I discuss this point further in my forthcoming article for the Wisconsin symposium.

  3. 
    Truth on the Market 20 November 2011 at 5:02 pm

    What about Paul Caron? He’s more informative than any of you.

  4. 

    More years in more theoretical school? I don’t think so. How about less theory and less time in school running up monstrous debts. How about a two year program in Community Colleges.

  5. 

    The problem is that most of us sit around trying to figure out how to regulate the legal education industry when we have neither the knowledge nor the power to enable our solutions. The answer to this problem, as Hayek and others have long made clear, is to use the open market to allocate resources to their highest valued use (including the training of lawyers in the mix). The reason this seems so foreign to modern thinkers on the subject has more to do with the governance structure of universities than it does with the cupidity of law firms or their clients, though, along with Larry, I’d attribute some of the problem to the lawyer-licensing regime. Given that 99.9% of all legal education is done in either government or non-profit structures, there is simply no known way to determine whether we are producing too many or too few lawyers, whether we are charging too much or too little, whether we are giving them the right training, or who should be paying for this function. Clearly the equilibrium of the past 75-80 years has been upset, and a new one, also transient, will evolve. But without private property (including proprietary educational institutions), a non-subsidized educational system and open markets in education and lawyering we will still have no way of knowing whether the new equilibrium will represent an improvement or not.

    Clearly some market forces are at work in the present scheme of things. Segal does not seem to understand the heterogeneity of work that lawyers do, including acting as government regulators and legislators, business deal facilitators, family dispute mediators, or international negotiators, just to mention a few legal jobs each implicating very different forms of education. Therefore, no one approach to legal education (like clinics or bar-cram schools) can be optimal. There is room, as we see even in the current morass, for both the Yales of this world and the Kaplans, but so long as well-intentioned but clueless commentators continue to propound one-size-fits-all solutions for a massively complex problem, we won’t get anywhere. There is no good substitute for free markets.

  6. 

    First thing we do is shut down 1/2 the 200+ law schools. We have 4 in Minnesota, that’s 2 too many.

    I didn’t learn a single thing about how talk to a client or what the economic model was in the law, we need to add another year and focus on practical skills.

  7. 

    Professor Ribstein writes:

    “No wonder blogs are replacing the mainstream media as the source of cutting-edge information.”

    Agree!!

    Carlos

  8. 

    Law schools, largely ignoring the need to train their graduates in the practical skills of day to day lawyering were content to spew out graduates who theoretically had a single skill, namely having learned to “think like a lawyer, ” whatever that means. The needed task of training lawyer practical skills were relegated to law firms, which in turn, billed clients for these efforts.

    This used to be a great gig for the law firms. They took raw law school graduates with, as the author correctly notes had been taught much theoretical and historical knowledge and law firms then, in turn took to the task of teaching law school graduates the skills of practical lawyering largely by trial and error and then charging clients an hourly fee for these efforts. The clients have caught on and have said no mas. We still need to train our young lawyers the practical skills of day to day to day lawyering. We used to run a great gig under which we took raw law school graduates whose only particular skill was to “think like a lawyer” (whatever that means) and teach them the skills of practical lawyering largely by trial and error and then charging clients an hourly fee for these efforts. The clients have caught on and have said no mas. This gig is up.

    The cost of recruiting and then training young lawyers is enormous. If we add the hard costs of recruiting summer and first year associates, the soft costs of recruiting, the compensation paid to summer associates and first and second year associates with the expectation of producing a productive and profitable third year associate, the cost per lawyer may well approach a staggering $1,000,000 per lawyer at some law firms. This whopping expense was made less painful when we were able to charge clients an hourly fee for teaching our own lawyers basic skills. But, those days are gone. Clients are not willing to pay for first and second year associates.

    Well then, how are we going to train new lawyers? How about if we followed the rest of the world and imposed some form of mandatory clerkships as a condition for bar admission? This is precisely what I have proposed in detail at http://kowalskiandassociatesblog.com/2011/10/27/now-that-clients-won%e2%80%99t-pay-for-training-young-associates-how-are-we-going-to-teach-young-lawyers-the-skills-of-lawyering/

    But, let’s be classy and call these “fellowships.”

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