Monday, November 07, 2011

Legal education and the heir of Slytherin

That was then. This is now.

In my own lifetime, fiction for young adults has moved from S.E. Hinton to J.K. Rowling. Gritty stories about rumbling gangsters at an Oklahoma high school have given way to soaring fantasies about dueling sorcerers at the Hogwarts School of Witchcraft and Wizardry. At heart, though, I still believe what John Steinbeck said in East of Eden: There is one story in the world, and only one. Whether the setting is Will Rogers High, Hogwarts, or the law school of your choosing, formal schooling often pits Socs against Greasers and Purebloods against Mudbloods. The narrative is one of epic, ceaseless competition between elites and outsiders.

If you've managed to miss one of the greatest cultural phenomena of the last generation, let me introduce you to the magical world of Harry Potter. The boy wizard finds himself locked in a life-and-death struggle against the irredeemably evil Lord Voldemort. In his own time as a student at Hogwarts, Voldemort revived an old grudge that the ancient wizard, Salazar Slytherin, held against those he felt unworthy to practice magic. As the self-anointed Heir of Slytherin, Voldemort sought to purge all Muggle-born witches and wizards from Hogwarts and the magical arts. Who are Muggles? We nonmagical folk are Muggles. Voldemort had no use for witches and wizards born of ordinary, nonmagical parents. In the mind of the Dark Lord, only those born to pure-blooded witches and wizards deserve to command the potions, incantations, and spells of his profession.

Read the rest of this post . . . .All of this prepares me to open one of the darkest chambers of secrets in law and legal education. Law schools and the country's largest law firms have long occupied — and jealously guarded — the most coveted corners in the American legal profession. Indeed, these institutions perpetuate each other's lock on power and prestige. Every city has its collection of "BigLaw" firms — highly leveraged partnerships performing a wide range of legal services on behalf of the corporate and institutional clients that control our society's greatest concentrations of wealth. BigLaw draws its talent from the most highly credentialed students emerging from our law schools. Without elite grades, no student stands a chance of scoring a BigLaw interview, let alone a BigLaw job.

At some schools, BigLaw does dig deeper in the talent pool. Of course, those schools are the prestigious ones with national reputations. Typically they're named for dead white men who conquered and paved North America, or else for big, wealthy states. At schools such as Harvard, Duke, or Vanderbilt, or Virginia, Michigan, or Berkeley, BigLaw historically has been willing to interview a broader spectrum of students. At schools that historically operated under a municipal charter and have dedicated themselves to the higher training and useful education of local youth, BigLaw has been decidedly pickier.

This is not an altogether flattering portrayal. I admit as much. In fairness, I will say this: My own corner of the profession, legal education, has been complicit in this elitist exercise. That is a severe understatement. Indeed, law schools collectively have elevated grades and rankings above all other considerations. Legal educators devised the elitist complex of grades, honors, law review credentials, and federal court clerkships on which BigLaw has built its entire model for evaluating talent. If anything, academia has doubled down on BigLaw's bet. We draw our own faculty ranks from an even more selective pool of candidates. BigLaw and American law schools have anointed their superstars on the basis of schools attended and grades attained when these lawyers and professors were students in their twenty-something years, as though ancient educational credentials represented the lone basis of membership in some sort of professional apostolic succession.

Excessive emphasis on pedigree over performance has pushed the legal profession to a point of reckoning. Hourly billing, at hundreds of dollars per hour and without regard to actual value delivered, is a barbarous relic that contemporary clients, sensitive to their own economic survival, have rightfully begun to reject. Law schools can no longer indulge the conventional assumption that they can focus entirely on training their students to "think like lawyers," without attention to concrete skills or the pragmatic nuances of actual practice. Every instance of mismatch between paper credentials and actual performance on the job signals incompleteness or even outright inaccuracy in the elite model of legal education and BigLaw recruitment. Every BigLaw hire that flames out after two unproductive years should prompt honest recognition of the limits of elite credentials. Honesty about the limits of the existing model of legal education should prompt all law schools to ensure their students a true return on their educational investment, to prepare all students not just to ace an exam or "book" a subject, but to be as fully prepared to serve clients and deliver results as a lawyer can be upon passing the bar exam.

This is not a jeremiad against legal education and elite law firms. All models of legal practice, in firms large and small, in government as in education and in philanthropy, deliver value to clients and to society at large. I believe wholeheartedly in the transformative power of legal education, motivated by a passion for teaching and informed by serious scholarship. For me to believe otherwise would force me to declare my own life an evil, bankrupt waste, and I emphatically believe that I have not lived in vain.

For good reason, jobs in BigLaw and the legal academy are very highly coveted. A BigLaw salary is one of the very few ways a new law school graduate can realize an immediate return on educational investment. Law professors earn very decent pay, with tenure, for intellectually stimulating work in an environment dedicated to educating youth and elevating society. If anything, though, the benefits of working in BigLaw or the legal academy affirmatively compound the heavy burden that its defenders must discharge. Those of us who care most about the legal profession and have gained the most from it owe a corresponding duty to take a hard look at the weaknesses of our shared calling. Whatever personal or professional inconvenience we may incur, those of us at the pinnacle of professional success must tell the truth.

How shall we make things better? I always recommend some combination of honesty and optimism. Speak the truth and point to hope. This message combines my own experience with insights from history and literature. The world in which S.E. Hinton came of age was one that locked the rival political ideologies of the Soviet bloc and the north Atlantic alliance in mortal combat. The world of Harry Potter is one that pits the virtuous Order of the Phoenix against Lord Voldemort's degenerate Death Eaters. Those stories, real and fantastic, teach us useful lessons. Extreme opponents often become agents of reconciliation. The greatest breakthrough between the Communist world and the West came when Richard Nixon, the consummate Cold Warrior, visited "Red" China. By contrast, those who prevail through conflict and confrontation often do so by virtue of some close connection to the enemy, perhaps even kinship. At the risk of spoiling J.K. Rowling's books and the movies inspired by them, I will tell you that Harry Potter ultimately defeats Voldemort on the strength of a mysterious connection that links the boy wizard to the Dark Lord's most treacherous powers. The intermediary who helps Harry harness those powers had himself been seduced in his youth by the Death Eaters. The power of the enemy, personally taken, holds the key to victory over that foe.

And so it must be that a critic of elite legal education, to be credible, must be one who has succeeded by its terms, both in school and in later professional life. With your indulgence, I'll make my argument very personal. In my twenties I enjoyed a double dose of privilege and prestige: Not only did I attend Harvard Law School alongside the future President of the United States; I also clerked at the Supreme Court of the United States. These experiences gave me the privilege of choosing between BigLaw and the legal academy. I spent many hours in my thirties divining some of the law's most intellectually challenging mysteries, from the use of macroeconomic indicators in utility regulation to the legal protection of biodiversity and functioning ecosystems as information platforms. All those things came to me, in large measure, because I turned in fantastic performances in torts, federal courts, and international business transactions. Those grades predicted intelligence of some relevance to the legal profession, and I worked my hardest to make good on the promise of my youth. But the task to which I have devoted my forties, that of managing a complex educational institution for the betterment of its students and the clients they will ultimately serve, is one that transcends my grades, my diplomas, my clerkships, and even the articles on my curriculum vitae. Everything I've done in life didn't get graded in law school. Grades were then. Life is now. As a firmly committed Muggle, I am no heir of Slytherin. Fate did bestow upon me a bundle of legal education's most elite experiences. And this is what I have learned since graduation: There is no value in prestige or credentials. There is only performance, and those who have the wisdom to prize it.


Anonymous Anonymous said...

You are what you do.

11/07/2011 11:42 AM  
Blogger Mathew said...

I think you summed it up very nicely.

11/09/2011 4:03 PM  
Blogger David M. Knights said...

I am a U of L JD and I generally agree with your sentiment. I was proud to see U of L law get an A- as one of the best values in legal education. However, why, oh why, di you have to say:
"Typically they're named for dead white men who conquered and paved North America"? Was their any need to inject race or the "dead white guys" trope into the discussion? It added nothing to the argument. In fact, it detracted from it. You could have named the elite schools with out that description, as you did, and be just as effective. Was it just a knee-jerk, have to insert the phrase bias that you find in all colleges these days?

11/10/2011 1:06 PM  
Anonymous Anonymous said...

Good read, Dean Chen. Interesting. I would say Networking, in a place like Louisville, is the most important thing, even more so than grades, but what do I know, I'm just a 1L!?

11/11/2011 9:15 PM  
Anonymous Anonymous said...

Good read, Dean Chen. Interesting. I would say Networking, in a place like Louisville, is the most important thing, even more so than grades, but what do I know, I'm just a 1L!?

11/11/2011 9:15 PM  

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