The NYT on legal education again

Larry Ribstein —  26 November 2011

Last week the NYT’s David Segal attacked modern legal education in what many bloggers have criticized as an overwrought and inaccurate article. I joined the chorus. Referring to my article Practicing Theory, I noted that Segal had made the often-repeated mistake of blaming legal educators for teaching too much theory and not enough practice when nobody knows what the future of practice will be:    

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. * * * The real problem * * * 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.

Today’s NYT has an editorial that tracks many of Segal’s criticisms. Leiter has already subjected the editorial to a thorough fisking. I agree with many of Leiter’s criticisms — and particularly regarding the editorial’s confused attempt to relate the problems of legal education. 

But I note with interest that the editorial seems to pick up on some of the points I made in my blog post and article:

  • The editorial notes the need to “teach to what legal practice now entails.”
  • Just as I said future lawyers will be “architects and designers” the NYT says they will be “negotiators and deal-shapers, and problem-solvers.”
  • Tracking my basic point, the editorial says “the choice is not between teaching legal theory or practice.” 
  • Both the editorial and my article criticized legal education’s Langdellian heritage. (Leiter correctly observes that the NYT’s criticism is misguided; the point in my article wasn’t so much that Langdell was wrong, but that his influence marked the divide between legal education and the market for lawyers). 

So maybe it’s not too much of a stretch to think the Grey Lady is stooping to the blogs, even if not getting her hands too dirty with them.

Larry Ribstein

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Professor of Law, University of Illinois College of Law

9 responses to The NYT on legal education again

  1. 

    Oh dear lord I’m debating with a lawsuit factoring company. Never mind.

  2. 

    “A professor in my eyes is someone willing to lend knowledge of a skill he is proficient in.”

    In theory. In reality – at least with regards to most full time law school professors, a professor is someone willing to lend knowledge on a topic that has nothing to do with what lawyers do, because he is not proficient in what lawyers do, because he has barely any experience as a lawyer.

  3. 

    Yea, let me echo the sentiment of Anon’s previous reply to this post — the problem is very much with the people who teach law, and not with the contents of the material being taught. Have you ever heard the joke of the depraved law student? Okay, a law student is arrested for a DUI and possession of illegal substances. Terrified, he visits the offices of his law professors only to be met with one of three responses (1) I haven’t practiced law in 15-25 years; (2) I only practiced law for 2 years before teaching; or (3) I have never practiced law. That pretty much summarizes the kind of people that teach law in the universities.

    I mean this in the best possible way, but just look at the Honorable author of this post, Mr. Larry Ribstein himself. Mr. Ribstein satisfies both (1) and (2) outlined above. Is he really in a position to be commenting on the “mechanics” of real world legal practice? He is an academic, and his knowledge (informed as it is) really just derives from journal articles and academic commentary. How can someone who hasn’t practiced in 25 years (and having only practiced for three years) be in a position to comment on how students should prepare to enter the REAL WORLD?

    I have learned more from adjunct law faculty who teach one course a semester and then hold real-world jobs than from professors with degrees from Harvard and Yale who themselves have never practiced law. That is how we should reform legal education. Get rid of the academics — secondary literature doesn’t matter anyway. It is all about case law. One Supreme Court decision is worth more than 100 legal journal articles. So we don’t REALLY need law professors who spend their time writing articles. So get rid of the professors. Law schools should just employ adjunct faculty that are still practicing. They are in a much better position to give real-world advice to prospective law practictioners (i.e. law students). Not to mention, this would also probably cause tuition to fall….

  4. 

    I Would like to state to Anon that your a little off there. I would agree with the architect to mechanic gesture, but without the professor, what do you have? A professor in my eyes is someone willing to lend knowledge of a skill he is proficient in. Hence, professor. And you can always tell the future, so long as you follow the trends. In law, it’s obvious of the next area of subject, Although law is so vast and really takes time to learn such values, I would think that a professor has just as much of a right to help the world as does a mechanic and architect.

    The architect understands the structure. The mechanic can ensure it is maintained. BUT neither can exist without the professor, unless you are incredibly lucky or a superhero.

    When faced with a million problems, I myself wonder where to start. My goals in life are not about being powerful, if it comes with the territory great, but I think there are far more values in this world that are not kept and are lost when hope just decays.

  5. 

    Larry, it appears you’ve been invaded by the Campos hordes of anti-intellectual failures.

  6. 

    Architects vs. mechanics? You can’t be a proper architect unless you understand how to fix what you made. You can’t be a mechanic, unless you can understand how the thing you’re fixing was designed. Such distinctions only prove that you don’t know what architects or mechanics do.

    Most legal academics couldn’t be an architect or a mechanic because those two skill sets require mathematical, scientific, black and white, right or wrong, results oriented thinking. The building is either going to stay up or it isn’t; the car is either going to run or it isn’t; and no amount of arguing or philosophizing will affect that result. Mechanics and architests don’t argue – they make things work.

    The problem with legal academia as it exists today, is that you have too many philosophers in the mix. Philosophers who couldn’t make it in the uber-competitive world of philosophy and so became “Law and Philosophy” professors. We need less philosophers and more mechanics in the law, more scientists in the law, more mathematicians in the law.

    The first thing that will happen if you bring such folks in, is that they will explain the simple “supply and demand” for legal jobs problem to the rest of you. This has to be at least a thousand year old idea, but once you guys discover it, law schools will be forced to make drastic reductions in tuition so that the cost of their degree matches the value. Top schools get to charge $50,000 per year, perhaps, but NYLS and Cooley will have to charge $5,000 per year. For some schools, the cost will be so low that they will have to go out of business.

    The second thing that will happen (tied to the first) – is that no longer will it be acceptable for law schools to steal from poor young kids by promising them jobs that don’t exist. That’s a symptom of an industry run by philospher types. A mechanic would analogize legal academia to telling a customer that he will fix their car, collecting fees up front and then breaking the car. Mechanics don’t do things like that. They don’t steal from people deviously and then argue their way out of it. They treat their customers honestly.

    The third thing that will happen is that they will introduce legal academia to the idea of the “scientific method.” This was the brilliant (brilliant thousands of years ago) that allowed the other fields to surpass Philosophy. In the old days, you had Philosophers like Leiter proclaiming things based solely on the perceived power of their thoughts. They said a rock would fall at a greater rate than a feather, and made what turned out to be absurd statements about biology – all because they valued the thoughts in their head over real world experimentation. That’s why Philosophy died as a field to the point where the only two jobs a philosopher can have today are 7-11 clerk, Philosophy Professor or Law Professor. We need to remove the second job.

    In summary, please don’t look down on a mechanic or architect because they do more for the world than a law professor ever will.

  7. 

    To suggest that we don’t know what the future of the practice of law will be does a disservice to the many scholars who have studied the subject exhaustively.

    There is a fairly broad based consensus of what the law firm of the Twenty-first century and the demands on practitioners will be in coming years. As we sit here in the second decade of this millennium, many, if not most of these predictions are proving quite accurate. See, for example, http://kowalskiandassociatesblog.com/2010/10/31/the-law-firm-of-the-twenty-first-century/

  8. 

    I agree that theory is the foundation that allows legal reasoning. The problem is to keep focus in the future, not being dogmatic.

  9. 

    Why does no one point out to the New York Times that there would be no legal-education problem worth discussing if the sheer quantity of law had not exploded beyond anything that a civilized society can manage? This explosion is in no small part due to precisely the kind of social, economic and political policies that the NYT has long promoted but whose unforeseen consequences the Times seems to blithely ignore. How are the law schools supposed to deal with the tens of thousands of pages of tax rules and regulations, the brain-numbing and foolish regulatory controls of finance and banking and many other industries, the environmental controls that defy rational analysis, and on and on and on? Under a system of law so big, so complex and so arbitrary as ours the very idea of the “rule of law” (or “thinking like a lawyer”) is fast becoming a joke. The law schools, always struggling under a governance system that guarantees a sluggish response to market demands, have indeed done about all they could under the circumstances. They try to give students some idea of the case method that still controls much of what lawyers do and the basics of the most used areas of law; they have (belatedly and with over-reaction to be sure) brought in the clinical training that is certainly apposite for the vast number of lawyers who will do mundane legal work; and finally some integrate the economics, accounting and finance and perhaps other skills needed by the uber-lawyers. There is little else that law schools as such can do about the flood of law that threatens to drown us all.