It is much more difficult to recede from a scale of expenditure once adopted than it is to extend the accustomed scale in response to an accession of wealth. — Veblen —
I started ITLSS two years ago this week, in part, because I was frustrated with the sheer level of bullshit prevalent in American legal academia. I stopped it, in part, because after awhile one (and by one I mean me) becomes tired of playing the role of Jeremiah or Howard Beale or your annoying and embarrassing relative who is always saying tactless things at the wrong times and places, even, or especially, if those things happen to be true.
Still . . . last week an ABA committee issued a “working paper” that, after many pages of throat-clearing, issued some on the whole very mild recommendations regarding possible reforms to the structure of American law schools, given the combination of their increasingly high cost and the increasingly problematic employment outcomes experienced by their graduates.
Nothing could better illustrate the need for reform than some of the reactions to the paper. For example, this post features an approving link to a PDF in which a former dean of a law school expressing his view that a distinction needs to be maintained between the training and education of lawyers, and that law schools should not sacrifice the latter in the pursuit of the former:
Let me make a quick and rough distinction between education and training. I can train a reasonably intelligent eighth-grader to draft a non-compete clause in 10 or 15 minutes. I cannot, however, educate them about market definition, information asymmetries, or public policies regarding employment in different sectors of the economy. One might quickly ask: Why would someone who knows how to draft such a clause need to know about economics and market dynamics? The answer is as simple as it is obvious. They need to know the context so that they can critically assess a non-compete clause or draft one in another situation for another client. Without the scholarly work in law and economics or jurisprudence or behavior psychology or other disciplines, the ability to analyze and criticize rules and principles of law is made more difficult if not impossible.
Let’s work through this.
(1) A lawyer drafting a non-compete clause needs to know two things: to what extent are these things enforceable in this jurisdiction, and who is my client? The lawyer will then cut and paste a non-compete clause from a preexisting form, and possibly, depending on how much money his or her client is willing to spend on this transaction, try to narrow it if the lawyer is representing the bound party, or broaden it if the lawyer is representing the enforcing party. That’s it. The economics and psychology and general jurisprudence of non-compete agreements are no doubt fascinating academic topics, especially from a comparative and historical and sociological perspective, but lawyers don’t get paid to think about that stuff.
(2) Law students don’t pay to think about that stuff either. Why? Because this is how much class time will be spent over the course of law school on non-compete agreements, in the experience of the average law student: Between zero and fifty minutes, with the median being zero. If any time whatsoever is spent on the subject, here’s how it will go down: The student will learn, or at least be exposed to, a few doctrinal generalities regarding such agreements, from which at most the student will take away a vague memory that they can be enforceable in a lot of places if they’re not “unreasonably” broad but probably not in California. If the student is unlucky he or she may retain an even vaguer memory of being harassed regarding whether making such agreements enforceable is “sound public policy,” from an economic and psychological and jurisprudential and comparative and sociological perspective (socially appropriate answer: it depends on a variety of factors, which must be carefully balanced by courts and legislatures; true answer: nobody really knows, especially not law professors, whose knowledge of the economics and psychology and etc. etc. etc. of non-compete agreements is never going to be more than puddle-deep, if that much).
(3) Speaking of law professors, here’s the CV of the person who favored the ABA committee with his observations regarding their work. Check it out kids: if you had only had the foresight to be born in 1948 instead of 1988, you too could have had an academic and professional career that consisted of going straight from undergrad to George Washington Law School, getting moderately good grades, spending two years as an associate with a small law firm in New Jersey, then spending the next 37 years (and counting) as a law professor, of the sub-genus homo administratrix, “serving” on about a hundred committees and task forces, eventually running a law school, and lecturing people about what lawyers need to know about a wide variety of extremely complex academic subjects, on the basis of your experience as a general litigation associate with a small law firm in New Jersey 38 years ago, and your own training in a wide variety of extremely complex academic subjects as a law student 40 years ago.