Impractical law schools

Cite this Article
Larry Ribstein, Impractical law schools, Truth on the Market (July 11, 2011),

The WSJ reports today on how “some law schools are throwing out decades of tradition by replacing textbook courses with classes that teach more practical skills.”  Examples from the article:  IU’s courses on “project management” and “emotional intelligence;” NYLS’s courses in “negotiation, counseling and fact investigation;” W & L’s new third year curriculum replacing “lectures and Socratic-style seminars for case-based simulations run by practicing lawyers.”; Harvard’s “problem-solving class for first-year students;” and Stanford’s plan to require “a full-time clinical course.”

The article is pretty thin and its point murky, but it’s sure to provoke discussion, so here’s a start.

To begin with, what’s the impetus for these changes?  Stanford’s Larry Kramer tells the reporter, “law firms are saying, ‘You’re sending us people who are not in a position to do anything useful for clients.’ This is a first effort to try and fix that.” A U of I grad who now runs a law firm specializing in startups says she had to learn the skills for doing this “on her own.”

Yes, we’ve heard many times that law firms no longer want to hire inexperienced students, and so we need more “practical” training.  The article goes down this road for awhile.  Law schools don’t have enough clinical training.  Bill Henderson gets in his usual quote:  “law professors tend to focus on scholarly work.” The U of I grad says that in contrast to medical school, “[i]n law, we’re learning from a bunch of academics who have deliberately elected not to pursue law as a profession.”

But law schools have long offered substantial curricula in skills and clinical work. Illinois, for example, has clinics in civil litigation, domestic violence, international human rights, federal civil rights, family law, and patents and skills training in trial advocacy, law practice management, civil, criminal, patent, and appellate litigation. So is the problem not that law schools aren’t doing this, but that they’re not doing enough of it, or not doing it right?

Then the story switches gears and discusses the decline in law firm jobs, which of course we have heard before.  That would suggest that the problem is not that law students aren’t being trained for law practice jobs, but that the traditional law practice jobs are disappearing.  It logically should follow that maybe we ought to start rethinking the type of “practical” training law school should be providing.  But the WSJ article ignores this issue. 

I have argued in a forthcoming article that the question isn’t practice vs. theory, but what does training for the law jobs of the future entail?  My own approach explores implications of the information revolution facing the law biz today, and the fundamental changes it’s bringing to what lawyers are and will be doing. In a nutshell, law-trained people are increasingly being involved in the design of products such as form contracts or even laws, and participating in capital market valuation of legal consequences. 

I could be wrong about the specifics, but I think that at least I’m asking the right question.  

This discussion of practical vs. impractical theory segues with CJ Roberts’s much-blogged criticism of contemporary legal scholarship (echoing Judge Harry T. Edwards’ earlier remarks):

Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.

Prof B comments generally along the same lines: “Law is applied science, not basic research. We’re engineers, not theoretical physicists.” Prof B supports Jason Mazzone’s advocacy of a Ph.D. in law as a response to this problem.

But to design a new degree program or just guide individual research we must ask the same questions about legal scholarship as about law teaching – what does “practical” mean, and relevant to what?  Maybe you could get a majority vote that CJ Roberts’ mythical (I assume) article doesn’t cut it, but what does?  As I said last week, this is about the value of legal education.  Again, I look to the emerging legal information market.  Again, it might be the wrong approach, but at least it’s the right question.

Underlying all these questions about the market for legal education and lawyers is the sad fact I discussed recently that many consumers are being disserved or underserved by the legal profession as it exists today.  The profession, and therefore legal education, have to change, not only for law professors and lawyers but for those we purport to serve.  Here’s where I think I’m on on pretty firm ground:  The legal information market offers the potential of cheaper, higher quality legal information for the masses than the current lawyer-client model.

The problem, of course, is that we can’t predict the future of the market for legal skills, just as we can’t predict any aspect of the future with any confidence. Regulation of law schools and lawyers has impeded the kind of diversity and experimentation necessary to train people who can handle whatever this market happens to look like. If the regulation remains, it has to at least be more flexible and move less glacially than has been the case.  And we need to start asking the right questions.