The better angels of our profession

Adapted from the December 2011 issue of Louisville Bar Briefs and from The Cardinal Lawyer

With his series of articles on legal education, David Segal of the New York Times has left a deep impression. From the beginning of calendar year 2011, Segal has repeatedly criticized some aspects of contemporary legal education. In an age when lawyer salaries have not kept pace with ballooning law school costs and student debts, he has questioned the economic rationality of attending law school. He has accused some law schools of offering financial aid packages that are tied to maintenance of seemingly attainable grade point averages, which then evaporate in the face of tough grading curves and expose scholarship recipients to second- and third-year bills for full tuition. He has challenged universities to prove that they are not running law schools as cash cows for cross-subsidizing lower-revenue units on campus.

But nothing else in David Segal's portfolio has caught the legal academy's attention like his November 20, 2011, article called "After Law School, Associates Learn to Be Lawyers." This excerpt provides the flavor of the article as a whole:

[T]he three people taking notes are not students. They are associates at a law firm called Drinker Biddle & Reath, hired to handle corporate transactions. And they have each spent three years and as much as $150,000 for a legal degree.

What they did not get, for all that time and money, was much practical training. Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”

In other words, "Everything I needed to know about law, I didn't learn in law school."

Read the rest of this post . . . .To cap things off, the Times published a staff editorial immediately after Segal's article on the contrast between law firms' expectations and law schools' priorities. "Legal Education Reform" called upon American law schools to adopt sweeping reforms, including wholesale reconsideration of its emphasis on legal reasoning, especially as demonstrated in appellate cases.

Law professors across the country have reacted rather strongly to the New York Times' series, particularly Segal's article on law faculty hiring and the staff editorial demanding law school reform. Those reactions have fallen into three broad categories. Elisabeth Kübler-Ross would be proud: Faced with this challenge to their dignity and their raison d'être, law professors collectively have covered nearly the entire emotional range of the grieving process. Some have reacted with denial and anger. Others actively try to bargain with other branches of the legal profession. Still others, albeit with some measure of depression, have done their best to accept appropriate criticism and to begin framing some form of meaningful, constructive response.

Let me begin with the angry deniers. For my part, I do not believe that law professors and law schools do themselves any favors, in an age of indebted students, unemployed law school graduates, and laid-off lawyers, to trash these criticisms as a "hatchet job" or (better yet) a "bile pile." It takes a deep measure of cynicism — petty selfishness, really — to characterize the Times as being motivated by their writers and editors' failure to get relatives into law school or past the bar exam. A second, less angry cohort of law professors fervently wants to believe that tough times in the legal profession are merely cyclical. Wait a year or two or five, so the wishing goes, and things will be back to the way they always were.

Count me in the third camp. The criticisms are real. They sting. All of us, from law schools and law students to lawyers and law firms, have to do something. Things could, things should be better.

There is, to be sure, much to criticize in the work of Segal and his Times colleagues. "After Law School, Associates Learn to Be Lawyers" makes serious factual errors. Segal mischaracterizes the content of law school courses on criminal law and criminal procedure. He represents as legal scholarship an article appearing in a philosophy journal. The Times as a whole seems to belittle the value of analytical legal reasoning and, correspondingly, to elevate certain formalities of legal practice (such as filing a certificate of merger). But to take issue with these minutiae, let alone to tee off in anger or resentment, is to pay no heed to the realities of modern legal practice. The business of delivering traditional legal services has lost much of its value. Along with the conventional lawyering model, the value of a generalist legal education has also plummeted. At once opportunistic and enterprising, all sorts of competitors — foreign lawyers, nonlegal professionals, actual lawyers who understand the urgencies of a mobile, technologically volatile age — are upsetting longstanding expectations about beginning salaries and the up-or-out partnership track. Cost-conscious clients distrust the billable hour. They are even more hostile to the idea of subsidizing the training of rookie lawyers who haven't learned all they needed during 90 credits of formal law school coursework.

As serendipity would have it, the entire episode coincided with my discovery of psychologist Steven Pinker's latest book, The Better Angels of Our Nature: Why Violence Has Declined. There is a single gem of wisdom in Pinker's book that seems particularly pertinent to this controversy. Pinker reports, on the basis of deep knowledge about human pyschology, that people systematically overestimate their own grievances and underestimate the pain borne by others. This bias transcends the notion that the grass is always greener on the other side of the fence. It's the regrettable tendency that we all have: believing that our grass alone is brown, and it's the fault of all our neighbors.

Demonizing the opposition is the root of all violence. And violence takes many forms. The ancient and modern societies of Pinker's book wage war. If only they took prisoners, rather than enslaving their enemies or slaying them outright. Lawyers, including those who teach law more often than they practice it, too often excel in inflicting emotional wounds for no apparent purpose except to assuage their own sense of hurt. When it comes to genuine reform of legal education and the profession it serves, casting Segal and the New York Times onto the "bile pile" of academic amusement and aggrandizement accomplishes absolutely nothing.

The hard truth is that law schools could stand to act more like law firms, paying closer heed to what lawyers actually do for a living. Law firms could stand to to act more like law schools, absorbing the cost and the responsibility of training their new recruits instead of expecting law professors to know skills best perfected far from the classroom. Law students would be well served to take a hard, financially sophisticated look at the out-of-pocket and opportunity costs of legal education, to say nothing of the strictly pecuniary returns on their investments in personal capital. The Socratic method and the parsing of written appellate opinions have a firm place in law school. But law schools and bar examiners and hiring partners should all work together to reconsider why and how we teach certain things. Sheer age and force of habit are terrible excuses for doing anything, much less forcing aspiring members of our profession to endure a three-year ordeal. The relative cheapness of traditional lecturing explains why it's more prevalent than hand-to-hand clinical teaching, but cost alone sheds at best incomplete light on the value of practical as well as intellectual training in law school. And no one, inside or outside the academy, has ever found the perfect way to convey subtle skills that arise over the course of a lifetime of professional activities and interpersonal relationships.

We have to start somewhere. Perhaps we can begin by admitting that everyone is in pain. Law students are in debt. Law schools face budget cuts. Law firms are enduring layoffs and lower per-partner payouts. For once, we might acknowledge that all of us have grievances, that our own complaints may be no more pressing than those of our companions. Fingers we have been too quick to point might yet touch what Abraham Lincoln called the mystic chords of memory — strings that can be struck only by the better angels of our profession.

Update: This item has been reprinted by Law School Transparency.