Sunday, November 20, 2011

Another Attack on Law Schools from the New York Times

In recent months, the New York Times has been attacking law schools and, more generally, the structure of legal education in a series of articles (see, e.g., here, here, and here). In today's edition (here), David Segal writes about the deplorable fact that law school graduates have no idea how to close a merger deal by drafting a certificate of merger and filing it with the Secretary of State's office. That's right, after spending $100,000 or more on a legal education, most law grads don't have that nugget of professional wisdom, and must learn it (presumably from a legal secretary or another practicing attorney, in a one minute conversation). The message is clear, law school curricula need to change to make sure that our grads not only know what a certificate of merger is but also where to find the Secretary of State's office. Such practical knowledge is far more important than actually thinking about and understanding complex legal rules and the various contexts in which they apply (or not).

Segal also, inevitably, takes a run at the hundreds of practically useless law review articles that are authored each year. No doubt, the various titles he quotes constitute a representative sample, so no need to worry about bias. He's certainly correct that law reviews publish a lot of drivel, a pile to which I have contributed my fair share (or more). But that too many articles are theoretical rather than practical is a common refrain for which I have yet to see any empirical evidence. Each week, when I receive the list of newly published articles,  I see a lot of abstract theoretical-looking articles and also a lot of very practical stuff, including many articles on recent court decisions and how they fit into or alter the preexisting body of law. What should be the proper percentage of practical to theoretical scholarship (assuming we can always tell the difference between the two)? I have no idea. I'm never quite as sure as jurists and journalists seem to be about which scholarly offerings, from which scholars (at which schools), contribute most to society's stock of useful knowledge.

The sum and substance of Segal's screed against legal education is that it is way too theoretical and insufficiently practical, leaving poor law firms to engage in remedial practical training. He ignores, conveniently, the fact that during the past 30 years law schools already have become far more practical in response to pressures from law firms. A relative of mine graduated from the Columbia Law School in the 1970s without having written a single paper. That would not be possible at any accredited law school in the country today thanks to  mandatory legal research and writing courses (whose teachers are, as Segal correctly notes, deplorably reduced to second-class status on most law faculties).

Unfortunately, Segal and the several wonderful lawyers and jurists he quotes in his article (all of whom somehow survived all of the theoretical nonsense, and lack of practical instruction, in law school), neglect two basic functions of academic legal training that, to my mind, are (a) far more socially valuable than knowing such discrete factoids as how to file a certificate of merger with the Secretary of State (something a beginning associate's secretary could probably do) and (b) could never be taught by law firms. First, law students learn about the legal system as a whole, beyond the specific areas in which they end of practicing (assuming they do end up practicing, rather than running businesses or doing the myriad other things in life for which legal education is relevant and valuable). This broad education empowers them to be active citizens and even leaders in their communities. Second, law schools teach the deep analytical skills needed not just to practice law but to judge, make, and even change the law. Third, law students learn how to decipher court decisions, legislation, regulatory rules and communicate about them in clear, sensible and critical writing. Without these skills learned in law school, it simply wouldn't matter that graduates knew what a certificate of merger was or where to file it.

Law schools certainly are far from perfect; they should and will change (however begrudgingly) as the market and broader society require. But the problem is not that they are hiring too many PhDs and too few practicing lawyers (many of whom apply to law schools seeking a cozy retirement from practice). Whatever changes are needed, the notion that law schools should change merely to serve the interests of the existing cadre of lawyers and jurists is far from clear. Law schools are and will remain professional and academic institutions that combine theoretical and practical training (in some combination that will never please everyone). The proper mix of the theoretical and practical (assuming we can always disentangle which is which - I've always thought of Legal History as a practical course) inevitably remains contestable. Law schools are not and never will be non-professional graduate schools. Neither should they become white-collar, vocational training schools for practicing lawyers.

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