Monday, October 22, 2007

Simple wisdom

PrisonersScott H. Greenfield of Simple Justice, a self-described and wonderfully understated "New York criminal defense blog," has written an insightful series of posts on "problems that are apparently rampant in law school and affecting the self-image of lawyers as well as efficacy of law school":
The students are disconnected and miserable and the LawProfs want to change everything to alleviate the misery. All in all, things are not working very well.
Mr. Greenfield's assessment proceeds in three steps: (1) professors, (2) students, and (3) law schools themselves. Each element of his analysis warrants close attention.

Professors[Law] students' complaints can be wrapped up in one word: disengaged. They are bored. They fail to see the relevancy of what they are being taught to what they hope to be. . . .

First year isn't as much of a problem, as the students arrive bright eyed with their empty 3-ring binders and Law School t-shirts, ready to learn. They will take whatever the lawprof dishes out, because they don't know much of anything. . . .

Second, and most particularly, third year students are not as easy. . . . These students fall into two groups: The ones who want to succeed at being law students (the law review types) and the ones who want to succeed at being lawyers. The former complain because law school is too low-brow for them, believing that they need intellectual stimulation so that their brilliant minds don't atrophy. The latter complain because they've come to realize that little of what they're hearing will do them any good when they get out in the real world.

Both of these complaints are wrongheaded. Lawyers, unlike physicians, go out into the world as generalists. Once we pass the bar exam, we are entitled to take on any legal matter under the sun . . . . We are, simply, lawyers.

And so, students must leave law school with a reasonable overview of the law, not merely to pass the bar exam . . . but because real people will one day ask them a question and rely on their answer. Even if Little Timmy wants to specialize in "deep well law," he needs to know something about real estate and even copyright. . . .

Lawprofs become critical. Make him care. Engage him. Worry less about how real estate law impacts the rights of Hogwarts versus the Ministry of Magic, and get down to the real world. If you cannot find a way to make your subject of interest to law students, then you aren't doing your job as a law professor. . . .

Next, we have the disconnect between law school and law reality. Students want to learn how to be lawyers. By third year, it generally dawns on them that they don't have a clue what being a real lawyer is all about. Sure, they've read 942 Supreme Court decisions, but a few will come to realize that they won't be arguing before SCOTUS in their first 6 months of practice. So what are the capable of doing? Nothing. Zero. Nada.

When I went to law school, a lot of us were relatively poor and needed to earn a living if we wanted to eat on a fairly regular basis. This forced us to get jobs with lawyers. Law review was for the rich kids who didn't need to work. We learned to prepare motions. We learned to deal with clients. We learned to figure out stuff effectively and then make it happen. If we didn't, we'd lose our jobs and have that whole eating problem again. We liked to eat, so we didn't screw up.

This apparently doesn't happen anymore. . . . [L]aw school has lost the connection between training lawyers and training law students. Lawprofs want to be scholars. How nice for you. Third year law students need lawyers, not scholars. They need lawprofs who have had real experience and can connect the theory to the application. Law students need to be taught what lawyers actually do and how they do it.

If you want to engage a third year law student, teach him how to be a lawyer. Teach him strategy and courtesy. Teach her why one makes a summary judgment motion and why one doesn't. Teach them how to do it. . . . How can a lawprof teach practice when they have never seen the inside of a local courtroom? Who are you to tell them the right way from the wrong way when you don't have a clue?

Lawprofs need to get out of the ivory tower where they hide from the vicissitudes of real law and spend some time in the trenches, where their students will soon be heading. . . . No student cares how many law review articles you've published. Actually, no one cares, except you and possibly your tenure committee. If you want to teach law, know law. If you want students to listen to you, have something to say. If you want to engage your students, stop being a bore and start earning your salary by teaching them what they've come to law school to learn. . . .
StudentsStudents are operating under the very mistaken impression that law school owes them a fascinating time and more. Wrongo. They are owed a legal education. This isn't a Broadway show, designed for the entertainment of the student consumers. This is professional school. There are things to be learned which are boring. So what? Grow up and learn what you need to know to be a lawyer. And please, stop whining. . . .

Here's a little secret from the world of lawyers: We don't think kids coming out of law school these days are very good. They are lazy. They are whiny. They expect everything to be handed to them and get all hot and bothered because people don't treat them nicely. . . .

Treatment of youth has been changing for a long time, with my generation (the baby boomers) doing a generally poor job of raising children with the right attitude and capability to survive in the grown up world. We coddled them. . . . This was a big mistake. . . .

So it should come as no surprise that the very notion of their being responsible for sitting on their little tushies and working hard to learn the law, even when it doesn't fascinate and charm them, would be foreign. The little darlings don't suffer unpleasantness. At least not happily. They demand better, because they think they can. . . .

[L]aw students don't seem to act like adults. This stunted adolescent behavior, mistaken belief in their perfection and demand to be entertained has skewed their understanding of how they fit into the world. There's a pecking order for a reason. Students have yet to learn what lawyers and professors have. Like what? Go to class, practice law for a few years, try a few cases, and then we'll talk. . . .

[D]ear students, it's your responsibility to learn how to become lawyers. Every day in law school is not going to be another day in paradise. Your professor isn't the third string substitute for Stephen Colbert or Sarah Silverman. They are professors. They are scholars. They may not be the most fascinating people in the world, but they know a whole lot more than you do. If you don't want to learn what they have to teach, what they hell are you doing wasting a seat?

Sure, to be effective professors should be capable of engaging you. But you, dear students, must be capable of being engaged. By the law, not by a decent floor show. The law is not always interesting. Indeed, it's often quite mundane. But you need to learn the basics anyway, particularly how to think and analyze like a lawyer. And that can be a particularly unpleasant activity because you're not going to do it right for a long time. . . .

If you want to be a lawyer, don't take "Law and Popular Movies" in law school. It won't come in handy. This is particularly true if you don't end up getting one of those $190k jobs, and instead find yourself unable to make the BMW lease payments. Talk about a rude awakening. Don't blame your law school. Don't blame your law professors. Being a professional means making your own way through your profession. There is no guaranteed pot of gold at the end of law school. It's entirely up to you.

And even though you don't need to work so you can eat tonight, you might want to try getting a job with a real lawyer. Maybe, just maybe, it will give you a clue what you're getting into. It may even teach you what real lawyers do everyday. Trust me, it's not going to be as fascinating as listening to law professors drone.

Enjoy law school. It's the last time in your life that you will be able to sit back and pretend that you are working very hard when you're really shouldering the least amount of responsibility that one can while pretending one is a true grown up. The day law school is over, you will find all the harsh expectations of the real world without the glamor of your unlimited potential that mommy told you about as she tied your shoe and wiped your nose.

So stop your bellyaching and go to class. Listen, even to the boring profs because they still have plenty to teach you. And appreciate that you don't know everything. It's not much of a price to pay to become a lawyer.
Law schools[Editor's note: Mr. Greenfield framed his discussion in response to a discussion at The Volokh Conspiracy spurred by my critique of the Supreme Court clerkship as an academic credential.]

[What is] the job of a law school professor[?] . . . According to the professors (and some lawyers), the primary function of a law school professor is to be a scholar. She should think scholarly thoughts and write scholarly works.

According to law students (and some lawyers), the primary function of a law school professor should be to train students to become lawyers. For many [observers], this was a ludicrous proposition. To them, teaching law students was as declassé as it gets. Law school was a worthless joke, and the very notion of teaching was laughable. Law was something that students (and lawyers) either "get" or don't, and teaching it was irrelevant. Worse yet, those who don't "get it" were unworthy of further thought. Poof, they disappeared.

There was also a large measure of tier-ism involved in this discussion. Top tier law schools (you know, where the smart kids go) didn't need teaching. These were the creme de la creme, and they naturally "get it". The bottom 80% of law schools produced pedestrian lawyers, who were taught by pedestrian wannabe professors. These students needed to be taught (since they obviously were too stupid to get it on their own), but simultaneously would never excel regardless of instruction because they were just too dumb. Here, teaching students was fine because neither the students nor their professors would ever be significant enough to enter the ranks of the elite.

The line was clearly drawn. Harvard Law School is a place where former Supreme Court clerks belonged so that they could hide in their paneled office and think about important things. Thomas M. Cooley Law School, well, not so much. While the former commanded important scholars, the latter needed teaching school certificate holders. . . .

[M]y gut reaction to this is "bull." The purpose of law school is to train lawyers, not to give former Supreme Court law clerks (or anyone else) a place to send their days so they don't have to work for a living. We train lawyers . . . to fulfill a function in society, to represent entities in their dealings or litigation to prevent society from tyranny or anarchy. Law students are not an ATM from whence law schools withdraw funds to pay for their professors' scholarly endeavors.

Not to slight scholarship, but the notion that law professors' primary function is legal scholarship is repugnant. True scholarship will happen regardless of whether law schools promote it. Ideas cannot be thwarted. Forced scholarship, on the other hand, brings us such genius as law review articles on Due Process at the Ministry of Magic. And you wonder why courts no longer look to law reviews for inspiration?

This pressure on law professors to produce scholarly works has two bad outcomes. First, it means that law professors no longer care about teaching, for there is no reward to being a good teacher. This failure is clearly reflected in law students' complaints about law school. Second, it has reduced law professors to fashion designers, moving hemlines up and down every year, just so they have something to say.

I venture to guess that no law professor will invent cold fusion or a cure for the common cold. Few will contribute anything of lasting substance to society in this year's law review. But you could make a monumental contribution by preparing young men and women to go out into the world with the skills, knowledge, ethics and willingness to zealously represent people. Each of these students will touch the lives of many people, and if well trained, make their lives a little bit better. Law School can and should be a part of this. It is not beneath you, Harvard. . . .


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