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A view from the bench

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A federal judge has asked me to post the following comment on the state of legal academia and the legal profession:

ON THE FAILURES OF LEGAL EDUCATION

It is no secret that many lawyers are dissatisfied with their profession. Of the million or so lawyers in the United States (more per capita by far than any other country) over half are said to be unhappy and giving serious consideration to leaving the practice of law. A burgeoning industry of coaching, counseling, and career change assistance has developed to guide such people to new opportunities. Facing declining applicant pools, law schools advertise that a legal education is worth its steep price irrespective of whether the graduate intends to practice law or engage in some other pursuit. But a number of recent law graduates have sued their schools, alleging that the law schools misrepresent post-graduate employment opportunities, that few jobs as lawyers are available, and those jobs that are available pay substantially less than law schools have represented. Indeed many law graduates are saddled with large student loan debts that place them in indentured servitude for years. The average debt for recent graduates exceeds $100,000.00.

Law professors are among the highest paid academics, and enjoy the newest buildings on ever-enlarging campuses. Law schools employ many part-time adjuncts who teach large enrollment classes for meager fees, generating even more profits for the law school budget, and less teaching time for the tenured faculty. Overhead costs for laboratories, equipment and floor space are nearly non-existent. Yet the law schools are engaged in fierce competition for increased enrollment and that most elusive of goals: academic prestige. The annual ranking of law schools by U.S. News and World Report becomes the coveted benchmark. Because law schools are profit centers for the universities, there is little external oversight of their operations. The litany of ensuing dubious practices includes puffing up of enrollees’ Law School Aptitude test scores and undergraduate GPAs, misleading and rigged graduate placement reports, and some not-so-subtle innovations such as paying stipends to recent graduates to work for free in courts, prosecutors’ offices and private firms during the sampling period.

A few brave and talented legal academics such as Paul Campos of the University of Colorado and Brian Tamanaha of Washington University St. Louis have risked becoming pariahs among their colleagues by exposing the failures and shortcomings of the law school institution. Accused of failing to prepare graduates to enter the profession, the law schools attempt to address the issues through economic arguments. Their students, they claim, are “practice ready,” meaning law firms can shift their most basic investment in young associates from the corporate clients who are no longer willing to foot the bill back to the very institutions responsible for creating the glutted market. In turn, graduates are forced to work long hours with less supervision on stultifying tasks at pay levels making service of their acquired debt nearly impossible, all for the promise of a partnership that has become a vanishing hope.

Recent accounts, such as Running From The Law by Deborah Arron assert that more than half of young lawyers leave the law knowing they have been lied to. They have sought the law as a means of earning a comfortable and secure living. They have been taught that academic standing in class increases one’s job prospects. The law schools have abandoned teaching that the most fundamental aspect of the profession is one of service. When the primary purpose of service is ignored, the practice of law is condemned to drudgery, to the pure hell of endless hours of performing rote work for a fee.

Plato knew that people learn by example, and from demonstrations illustrating the lessons to be learned. It is all well and good for law schools to offer courses in the substantive subjects of the law, but more fundamental to acquiring knowledge and forming character is the conduct of teachers and the institution they attend. (Indeed the word “attend” literally means “to pay attention to.”) Just as bad parenting produces bad children who grow up to become bad parents, what the student sees and feels counts more than routines of “practice ready” performance.

No wonder law students are learning to be materialistic and cynical, to consider the profession of law as gamesmanship, and merely a way to earn more money than the next person. When law schools misrepresent LSAT scores and job opportunities, offer third year courses with little or no pedagogic purpose or value, engage in grade inflation and charge ever-increasing tuition and fees, students learn that fraud, dissimulation and ethical corner-cutting are acceptable standards of behavior. When they learn of the gross separation in salaries and status and the relatively soft work schedules of the doctrinal faculty compared with clinical instructors with whom they have much closer personal contact, when they learn that adjunct faculty are paid pittances and used and abused as profit centers, when they see that school administrators outnumber scholars and that tenure is becoming obsolete, how can they not be expected to accept that this status quo is the criterion for the professional life?

Law schools claim that pragmatism is the only way to address fierce competition. To what end? Making graduates “practice ready” is an illusion, which is not only impossible to achieve, but in fact detrimental to the life and career of the student. The goal should be to produce young lawyers who, as Thomas Wolfe described writers attending workshops, are “ready to commence to begin to start” to learn, through a lifetime of practice, the art and craft of guiding others to safe passage through the extremities of experience, to achieve socially appropriate goals, and to insist on leading ethical lives. It is not to produce yet another cadre of cynical shysters grasping for more fees or a legion of those who flee the profession in despair.

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