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Legal education and the (a) problem of bad faith

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Most academics at research universities engage in two kinds of teaching: the general edification of undergraduates, and the professional training of graduate students who, in theory at least, are being prepared to replace their professors.

Law school professors aren’t doing either of these things. Instead, they’re preparing (sort of) people to do something they wouldn’t do if you paid them a whole lot more than what they’re getting paid now.

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  • Incontinentia Buttocks

    That law school education has too little to do with the actual practice of law? That’s a problem.

    That law schools are producing too many lawyers? Another real problem.

    That law professors enjoy their careers more than actual lawyers do? I’m sorry. I fail to see why this is a problem. Being a lawyer is, as you say, a bad job for most lawyers (at least that’s what studies sugget as well as the anecdotal evidence provided by the dozens of lawyers I know). Teaching and research, on the other hand, are much better jobs. And they will remain so even if law schools start producing a more sensible number of lawyers and/or offer curricula more tuned to actual professional education.

    • Incontinentia Buttocks

      I would add that the overproduction of PhD’s is also a problem in many disciplines. But the solution is not to accuse professors of being fat and lazy (an accusation the main “advantage” of which is that it instantly earns one the support of the kind of educational reformers who are simply hostile to the university…talk about bad faith!), but rather to get faculty to take a more systematic look at the structure of our profession.

      • Overproduction of graduates in general is fraught. One thing about computer science is that it’s subject to wild swings in enrolment (at every level). Cf the dot com boom/bust. The US seem to be in the midst of another over social networks. Departments tend to overexpand during booms (thus slurping up some of the PhD glut) and then struggle hard during busts (after all, profs have to have PhD students!).

        I’m unclear even how to tackle the problem. I’m really worried about the Great UK Fees Experiment/Catastrophe-in-Making because it seems poised to import the esp. broken parts of the US model. On the flip side, it puts pressure on the already grotesque fees that e.g., overseas MSc students pay (and with the elimination of the year of work after school aspect of the visa, it’s really grotesque).

        I suspect that it’s solvable, much in the way that the recession or health care is solvable: We could be trying a bunch of things which might work, but it’s politically impossible to do some of the key things. The current scam of ripping off pensions is a perfect example of measures which weaken the system without solving any problem.

        • mpowell

          There is still a huge difference between the UK and the US model which is that in the UK repayment of loan responsibility is tied to income level while in the US the debt is not even dischargable through bankruptcy. Frankly, the UK model seems to be a not bad at all one to me. It nearly fully absorbs student risk. Further subsidizing of HE is quite questionable from any political perspective, imop.

  • Snarki, child of Loki

    The problem is not that the US is producing too many lawyers.

    It’s that we’re not exporting enough of them to the rest of the world.

    • catclub

      Or to the center of the sun?

      • BigHank53

        An almost shockingly small percentage of the planet’s surface is habitable. Were we to distribute all lawyers uniformly, we’d lose all the ones that wound up in oceans, the Artic and Antarctic, in large rivers, and deserts. Survival rates would be low among those in jungles and alpine regions.

  • elm

    The issue identified here is not unique to law school, but is true to varying extents of all professional programs. Doctors in med schools are training students to be the sort of doctors the professors don’t won’t to be; business school professors often have little to no business experience and have opted out of the business world even if they did; and so on for programs in engineering, architecture, nursing, public health, etc. etc.

    IB above is right. The problem is the type of education provided not that the professors have a different job experience than most of their students ever will. The same could be said of professors in PhD programs, especially at third-tier and lower schools. Most students at these schools will not get jobs at PhD granting institutions but will, instead, get jobs with heavier teaching loads but no graduate teaching and less (possibly no) research expectations.

    • NonyNony

      The same could be said of professors in PhD programs, especially at third-tier and lower schools. Most students at these schools will not get jobs at PhD granting institutions but will, instead, get jobs with heavier teaching loads but no graduate teaching and less (possibly no) research expectations.

      Actually, depending on the program, most students at those kinds of institutions these days will get jobs that aren’t at a college and aren’t teaching. They’ll take their PhDs and end up doing something tangentially related to their PhD work.

      That’s because there aren’t enough positions and a glut of PhDs, so those “heavy teaching load” jobs are being taken by mediocre PhDs from top-tier universities who can’t get the few plum top-tier jobs opening up so they “settle” for the jobs that the lower-tier people were actually hoping to get.

      This is a big problem. Combine it with the fact that universities and colleges seem to want to hire more adjuncts to fill positions instead of full-time teaching faculty and it becomes an ever bigger problem. At least for those of us who were really hoping for one of those small school, teaching load heavy jobs.

      (Ah, things I would do differently if I had a time machine. Oh well…)

      • elm

        In my experience teaching at a third0-tier school, this isn’t true. The best of our students get jobs at schools similar to ours: PhD granting, 2-2 teaching load, heavy research expectations. Most of our students get jobs at masters-only universities or small college where they have 3-3 or higher teaching loads.

        Maybe it would help to define “third-tier.” First tier programs, by my definition, are the elite schools and programs. Most displines will have about 5 or 6 schools that clearly at the top. “Second-tier” are the rest of the top 25 or so schools. “Third tier” are those just outside the top 25.

        If your definition of third tier is even lower ranked schools, then you’re right: the grad students are getting jobs that resemble their professors even less.

        • Walt

          This is an absurdly fine-grained notion of tier. Tier one usually means research universities, which is between 50 and 100 schools.

          • elm

            Fine rained, yes, absurd, no. There is a vast amount of difference between the top research universities and the 100th ranked university, especially if you look at grad placement. In particular, departments rarely hire from tiers below them, though they may hire from lower ranked schools in their own tier. Essentially, I’m using “tier” here to mean schools one considers a “peer institution.” Yes, Harvard and Wisonsin-Milwaukee are both PhD-granting research universities. Neither consider each other to be a peer. (No offense intended to UWM. I chose them because a few years ago it was the lowest ranked PhD program in USNWR’s list of polisci programs. Even being on the list mean something, though, as well over half of the programs weren’t ranked.)

    • Lurker

      I do not know how the situation is with the med schools but with engineering programs, the situation is not as bad as you describe. In a good research university, the engineering departments are doing basic and applied research on the fields they are teaching. And having worked both as a university researcher and as an engineer in a related industry, I must say that the industry research lab is not that different environment from the academic engineering research laboratory. And as the professor is the head of his laboratory, he is teaching a field very much like his work.

      Of course, if you go for marketing and sales, or more financially directed areas of engineering, it’s a lot different, but if you stick to actual technology, the professors are doing jobs very much like the ones their graduates will have.

  • jbj

    Paul, I was intrigued by your observation that practicing law combines stress and boredom, whereas most professions might feature one or the other but not both.

    On the contrary, I’d say a number of traditional professions — doctors, teachers, clergy — may be subject to both boredom and stress. I recall descriptions I’ve read of the phenomenon of occupational burnout combine elements of both boredom and stress. Do others agree?

    Hesitantly, provisionally, I offer the theory that the longevity of these professions has led to big ossified institutions that fit people into small boxes, but at the same time the institutions have not responded to technological or other macro-level changes and are due for a seismic jolt that will displace a lot of mid-career people.

    • JB2

      As a lawyer who passed the bar almost 20 years ago, I find the stress/boredom question most interesting.

      Unfortunately, I’ve concluded that you just have to “eat your spinach” to make it work. In other words, increase the boredom to decrease the stress. Always pick up the phone; never let voice mail or e-mail linger for more than a day without a response; ruthlessly review every file as soon as it hits your desk; pester court clerks with your calendar problems as soon as they arise; break the bad news to clients/opposing counsel as soon as possible.

      Not saying I’ve achieved these lofty goals, but the more you boredom (& stress) you incur on the front end, the easier you’ll sleep at night.

  • Herman Newticks, Esq.

    Are they sort of preparing people, or are they preparing sort of people. My experiences in law school suggests both that law profs are only marginally preparing students, and that a number students are only marginally people.

    • Randy

      When you run into former classmates, are you pleased or merely tolerant?

      After 20+ years, I’m tolerant on my good days.

  • Law school professors aren’t doing either of these things. Instead, they’re preparing (sort of) people to do something they wouldn’t do if you paid them a whole lot more than what they’re getting paid now.

    I think the problem is a bit different. Most law students expect that law school will train them how to be lawyers, and many law professors claim to be teaching law students to “think like lawyers”. But for reasons you have noted most law professors aren’t particularly attuned to what it means to “think like a lawyer”, and appear to confuse “thinking like a law professor” with “thinking like a lawyer.” I believe my law school education was quite adequate for somebody hoping for a career as a faculty member at a law school, as a professor teaching legal subjects at an undergraduate institution, or as a clerk for a federal judge, as that’s what the professors knew.

    Actual legal practice? Some of my professors were very attuned to the “real world”, and one even managed to jointly hold a law firm partnership and a tenured faculty position and full teaching load, but as law school is traditionally taught there’s only so much you can do to bring practice into the classroom. (If you want to learn how law works in a courtroom, take a clinical course.) How to actually litigate a torts case? That’s not something you would study in torts class. Maybe they could squeeze some sense of it into Civil Procedure, or would that get in the way of teaching theory?

    Some professors weren’t particularly informed about the subjects that they were supposed to be teaching. No small percentage of that group had zero to two years of experience, usually in BigLaw, between their completion of a Supreme Court clerkship and the start of their careers as law professors. Among those faculty members, some would speak wistfully about how they wished they had spent a year or two with a U.S. Attorney’s Office before starting their teaching careers, but not a one seemed to have a good thing to say about legal practice or any desire to go back to a law firm.

    Over three years I saw a significant rise in the level of cynicism and apathy among my law school peers. I heard any number of professors in classes populated by 3L’s complain about student complacency – with good cause. But that complacency and apathy derives in no small part from the manner in which law school classes are taught and graded. By your third year, you have a pretty good sense of how the game is played and that your frantic over-preparation from your first year was far from the easiest path to a good grade.

    All of that said, I’m not going to complain that the material I learned in law school didn’t help me in practice, that having a broad education in theory doesn’t help you analyze and understand legal issues in practice, or that “thinking like a law professor” hasn’t at times been useful in practice. I also don’t think that law schools should be reduced to mechanistic trade schools. But I do think there should be a better correlation between what law schools claim to be teaching and what they actually teach. If the nation’s biggest law firms don’t shy away from hiring law students whose top tier law school educations focus on theory and concepts over practice, why is it so difficult to get law schools to admit that they emphasize theory and concepts over practice?

    • I agree with much of what you say, but it seems to me that the trend in legal education over the past ten years or so has been towards more clinical or skills type courses, at least in the upper division classes. I am resistant to the notion that law school should be more like trade school, however. The problem with our glamor profession isn’t about competence, or about training– it is about the over-supply of lawyers, which makes paying for all those loans a problem for so many people.

      If you pay for a PhD you are a chump. The academic profession endeavors to control access to its ranks by making fellowship and assistantship money available to the candidates it perceives as most promising. Law schools pretty much charge full freight (some will cut you some slack if you commit to public service for a set period). Law students oriented toward the most “practical” curriculum tend to be the lawyers who will be at the bottom of the earnings ladder– anybody at Yale who is taking a Federal Habeus clinic is doing it in the expectation that it’ll look good when applying for a clerkship, before moving on to a BigLaw gig.

  • Tracy Lightcap

    First, I don’t think most lawyers are in the law for the money. As Galanter said once, “It’s the tournament, not the money.” They wouldn’t do it if they weren’t well paid, of course, but most of the lawyers I know would take a 15% pay cut right in stride (indeed, many of them have) as long as they get to go after other lawyers and stick up for clients. That’s the fun part.

    Now, admittedly, that works more for the actual lawyers, the “lower hemisphere” Heinz and Lauman talk about, then BigLaw types. But here it’s useful to remember that it is BigLaw that is on the ropes and staggering, not the 5 person firm down the street from the courthouse.

    And that brings us to the real problem. As was pointed out above, it isn’t that law schools aren’t preparing students for practice; it’s that they are preparing them for the wrong kind of practice. An example = my son, the 3rd year. He worked for the Democratic candidate for governor last time and met some lawyers connected with the campaign. During his first year in law school, he met one of them at a dinner. Result = he was working for a two (that’s 2) man firm that summer. He started his first brief on his second day and still works for them, doing things that most young attorneys don’t do until a couple of years in. In other words, he’s reading law.

    Iow, it isn’t so much that law school profs hate the practice of law as that they aren’t sufficiently attuned to the actual limitations of the existing market. That is too bad, but they aren’t any worse then most English and history profs I know at research universities on that score. They can – and, imho, will – reform their practice over time. They have a yearly workshop at Northwestern on just that.

  • Really awesome article!

  • Aaron Baker

    The comment about stress AND boredom is completely apt. I’d add that whatever emotional satisfaction you get from legal aid work, legal aid jobs tend to be abysmal, too.

    At the end of six years with Prairie State Legal Services in Waukegan, Illinois, I was (fortunately) too depressed to commit suicide.

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  • over the past three years education roots are going very deep with no concepts in some cases,with some concepts in vauge.but the law should not be made like that.

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