Future shock

I’ve just read a revealing essay by Christopher Edley, the dean of UC-Berkeley’s law school, which was brought to my attention by Brian Tamanaha. Dean Edley looks back over the development of his institution on the 100th anniversary of its founding, considers where his law school is today, and tries to peer into the future. It’s not a long piece, and I encourage people to read the whole thing rather than just relying on my summary of what he has to say. What he has to say includes:

(1) At least at elite law schools, law professors who try to publish things that might be of practical value to lawyers may well harm their academic careers by doing so — and they probably shouldn’t be trying to do so anyway, given that they know little or nothing about legal practice:

Those law school academics who believe that our research, even the theoretical genres, can be professionally valuable have largely failed to build bridges to the realm of practicing lawyers. The career payoff for professors who do so is usually nil or negative, and it is difficult to build a bridge when you are almost clueless about the world across the chasm: extensive experience in law practice is not valued when hiring professors nearly as much as a doctoral dissertation or a couple of frame-breaking law review articles. (p. 320)

(2) Law schools teach people how to think about tough questions, and about the importance of ethical behavior, and these traits are valuable for many endeavors besides practicing law:

Starting with the first day of class, we train law students to probe beneath the simple or obvious answer, and to work hard at identifying the points of weakness in their analysis, and the strengths in the opposing position. We teach them about the purposes, strengths, and weaknesses of alternative procedures for making decisions; about how it often improves a decision if the competing positions are carefully presented by a motivated advocate, and if decisions are based on evidence and revealed principles. They learn that the answers to complex or important problems are often complex and controvertible, and that simplistic and facile answers are therefore suspect on their face. They learn to anticipate confusion, conflict, and surprise, and to engineer their client’s affairs accordingly. They learn the importance of integrity and ethical behavior, and how to wrestle intelligently with such issues. The value of these professional traits is obvious, and not only in courtrooms or for people who have passed a bar exam. (pp. 323-24)

(3) Given (2), elite law schools should move from inculcating generally useful habits of mind and ethical sensitivities in their students to actually preparing them to do things besides practice law (since preparing their students to practice law is something such schools can’t really do very well anyway given the current composition of their faculties; see (1) supra).

I often say that lawyers are so valuable as leaders and managers because we don’t really know anything; much of the training is, at least implicitly, about learning by asking smart questions. By this I mean that the traditional role of lawyers as problem solvers often requires that they know how to master hitherto unfamiliar things about the client’s world. It could be epidemiology or architecture, the structure of the widget industry or of a genome, the market movements of currency derivatives or the balance sheet of a landlord . . .

The value of legal training in extralegal career patterns can surely be enhanced by a great law school that goes beyond implicit preparation through the inculcation of habits of mind to explicit professional preparation for these wider roles—this in addition to the foundational training for conventional, licensed practice as lawyers. (p. 324)

(4) Indeed, when you consider the inherent intellectual value of the law school experience, why shouldn’t law schools alter their curricula in ways that would allow them take over much of what, for example, MBA programs are supposed to be doing?

Concretely, the Great Law School will soon include curricular and co-curricular tracks for students who intend to enter the business world—not as counsel, but as client, entrepreneur, and manager. The study of business law will be augmented by the study of business strategy and management. We know for a fact that some of our students plan to be real estate developers, investment bankers, or leaders in health care delivery. Our curriculum can easily do more to prepare them, and should. Much of the detail in a traditional M.B.A. curriculum can be elided, while some of the traditional legal doctrine and theory can be retooled or recalibrated to better suit the early stages of the intended career path. (Id).

And there’s no need to stop there. How many people will need to get a Masters in Public Policy or Public Health or Journalism when they will have the Great Law School of the Future at their disposal? After all, law school graduates go on to be not just “investment bankers [but also] community organizers, hospital administrators, journalists, and diplomats. Given this increasingly powerful and varied reality for people trained in the law, just what is the profession for which we are preparing our students?” (p.321).

(5) Although training people to enter professions other than law will be time consuming, luckily UC-Berkeley law students are bright enough that the school’s faculty have the freedom not to bother spending too much time preparing their students to pass the bar, let alone trying to teach them how to be lawyers, which again the faculty isn’t really qualified to do anyway:

A principal luxury for the faculty of elite law schools is that our highly competitive admissions process gives us students so capable that we are assured of high bar passage rates almost no matter what we teach. This is liberating and especially comforting for the many professors with little firsthand knowledge of legal practice. Once the admissions committees and job placement offices have done their work, virtually all our students will have fine careers, provided the faculty does them no harm. If only a modest fraction of three years’ coursework is perforce aligned with licensure, there is room for the expansive training mission I propose. Students have time to take several courses in anticipation of careers that make use of the law but do not entail the practice of law. [p. 325]

(6) To be a great public law school means to be especially dedicated to grappling with difficult public policy issues in a public-regarding way. What it does not mean is that such a school is or can be less expensive than private law schools, since lower expense is incompatible with a quality legal education:

There is a distinctive responsibility in public law schools to engage a portfolio of the most difficult and important problems of the society with an intentionality and collective effort that I consider essential to its public character. This contrasts with the typically laissez-faire ethos of elite private institutions, even when lightly colored by the public-regarding nature of the legal profession, or the civic leadership expected of wealthy institutions. If this distinction is not apparent in a public law school, at least in its aspiration, then that school’s only raison d’être is to be inexpensive—today an impossible burden if quality is also a priority. [pp. 325-26, emphasis in original]

(7) The great law school of the future will be a kind of international factory for exporting (American) Rule of Law values to the rest of the world. This is imperative, because the benefits of exposure to American legal civilization are too important to be left up to the haphazard influence of international business transactions. Rather, those benefits should be pursued directly through the exercise of “soft cultural power” (as opposed to the old colonialist resolve to civilize lesser breeds without the law at gunpoint if necessary). Part of this evangelical enterprise will involve bringing large numbers of foreign students to American law schools so that they may learn our ways first hand:

Imagine Great American Law Schools in which perhaps half of the students are citizens of other nations, and the student experience is structured to exploit that diversity. These might be in LL.M. programs or J.D. programs or something yet to be devised. The consequences for global legal culture could be profound in a matter of just one or two decades. This is a transformation of a wholly different order than simply requiring American law students to take a basic course in some kind of international law—which, though certainly an advance, is just an intellectual tease.

I believe the exporting of American legality should be a priority in the decades immediately ahead, and an effort with lead roles for law schools will be more legitimate and effective than an effort left to multinational commercial interests. [p. 329]

Comments:

Dean Edley’s frank admission in the context of (1) and (5) that it doesn’t make sense for the current Berkeley tenure-track faculty (43% of whom have PhDs and very few of whom have any extensive experience practicing law) to spend time trying to write what the likes of John Roberts and Harry Edwards consider “practical” legal scholarship, or for that matter trying to teach people how to be lawyers, is refreshing in its candor. It does serve as a reminder of what an odd situation has developed in legal academia – one in which the ABA’s accreditation rules prohibit more than 20% of a law school’s teaching to be done by practicing lawyers, while allowing law schools, if they so choose, (as many have) to staff their tenure-track faculties almost exclusively with people who have never really practiced law, and now increasingly don’t even have law degrees.

The claims in (2) are of course the standard fare about the supposed benefits of learning to “think like a lawyer.” The problem with these sorts of claims is that learning “to probe beneath the simple or obvious answer” and that “answers to complex or important problems are often complex and controvertible, and that simplistic and facile answers are therefore suspect on their face” etc., are lessons that are learned in any course of general learning worthy of the name, and most particularly by exposure to a liberal arts education. Indeed it’s difficult to see why anything resembling the standard law school experience would be as intellectually edifying in the general sense (as opposed to the narrowly professional sense that Dean Edley clearly disdains) as a good undergraduate course of study.

The arguments in (3) and (4) are startling for both their sheer hubris and their deeply implausible character. There’s something arresting about the claim that precisely because lawyers don’t, in Dean Edley’s words, “really know anything” they are uniquely well qualified to teach people to do just about anything – to, for example, run an investment bank, or a hospital, or a political system, or a magazine, or a diplomatic mission. Noting that this conclusion doesn’t seem to follow from the premise is something of an understatement.

But even this rhetorical gesture seems unremarkable in comparison to (5), where Dean Edley in effect announces that, given both how smart law students at elite schools are, and how many of them are going to do something other than practice law, we need not concern ourselves much regarding the extent to which, if at all, the faculties of “great law schools” are in fact teaching anybody anything about practicing law, and that therefore it makes sense for such faculties to devote their energies to other matters, especially given that these faculties are now better suited to other tasks than teaching people how to be lawyers. (If this sounds like it must be a caricature of Dean Edley’s argument, that’s only because his argument really is this outlandish.)

As for (6) this could perhaps be called The Ontological Argument for the Existence of $51,000 Public Law School Resident Tuition. Those of a less scholastic bent might be tempted to point out that if you conceptualize the Great Public Law School as a place that’s cranking out quasi-MBA and MPH and MPP graduates who also pick up law degrees in the process, while at the same time making the great globe itself safe for democracy and the Federal Rules of Civil Procedure, such an institution is naturally going to require an astronomical operating budget to make any pretense of fulfilling this ambitious vision of its role in the world.

The key fact about (7) is that, beneath the all-too-familiar idea that Americans ought to be telling the rest of the world how to live, lurks the economic base that is supposed to support all this ideological superstructure, in the form of enormous numbers of rich foreigners who will pay to buy their children the prestige associated with the names of America’s great universities. (Apparently just as the Chinese have bought our bonds they will now bail us out by buying our $225,000 law degrees.)

Finally, note that Dean Edley’s whole argument is premised on the idea that so many Berkeley law grads are making or at least will make good livings doing something other than practicing law that it makes sense to organize law schools – or at least “great public law schools” – around this supposed fact. But he provides no evidence for this claim, while a glance at Berkeley’s employment outcomes for its last two graduating classes reveals that no less than 94% of the school’s graduates who got jobs acquired employment for which bar admission was required. Note too that about half of Berkeley’s 2011 graduating class was making less than $62,000 per year – i.e., a figure equal to perhaps half the average 2011 graduate’s total educational debt. This seems like a problematic equation, given Dean Edley’s confident assertion that “virtually all” of the school’s graduates will go on to have “fine careers.”

In sum, this essay illustrates the extent to which some powerful people in elite legal academia remain in something close to total denial about the actual situation facing their graduates. And it should be unnecessary to point out that, when one moves from the context of a handful of elite law schools to that of the social and economic space which 95% of American law schools occupy, the essay’s vision of what The Law School of the Future will look like moves from the category of the deeply implausible to that of the truly bizarre.