Balkinization  

Sunday, August 29, 2010

Thoughts on Legal Education

Jason Mazzone

There is a lot of talk these days about what law schools teach. There is also a lot of talk about who teaches in law schools. Both conversations center on the relative importance of theory versus practice. Are law schools academic departments of universities that should be staffed with researchers pursuing knowledge? Or are law schools professional schools that should be staffed with practitioners who train students to perform legal work?

These conversations are not new. But they have taken on increased importance in the past few years with the 2007 Carnegie Report calling on law schools to provide more training to their students in practical and ethical skills and with the downturn in hiring of law school graduates.

Most law schools provide a mix of theory and practical skills. And most law schools have some teachers who are academically focused and other teachers who are more practice oriented. (In some schools, this division corresponds to differences in rank and title, with the academics the professors and the practice-oriented teachers called clinical faculty or instructors. In other schools, everyone is a professor.) Virtually all law schools also have lawyers or judges who teach part time as adjuncts; they usually cover the nitty-gritty of legal work.

Those who take a position on what law schools teach and who teaches in law schools typically call for a recalibration of this theory-practice mix. Mostly, like the Carnegie report, the recommendation is for less theory and more practical skills. But some observers think the current balance is fine: legal education, they say, provides a broad education in the law and specific practical skills are learned on the job. (A few observers think law schools should emphasize more not less theory.)

These debates strike me as too narrow. Rather than think in terms of what law schools do and who staffs them, we should think more broadly about the law school and the university.


As far as I can tell, no law school in the United States co-exists in a university along with an academic law department. If a university has a law school, every professor of law is in the law school.

We should reconsider this model. A different approach is for universities to have both a professional law school and an academic law department.

Under this approach, the professional school would be staffed by instructors whose job is to teach legal skills to lawyers-in-training. Instructors would not be expected to write books or articles. Instead, they would bring expertise in teaching practical skills. Such expertise would usually be acquired through practical experience combined with training in teaching methods. Instructors would not have tenure because they wouldn’t be engaged in academic research and so wouldn’t need it. (The university might, however, find it desirable or necessary to offer long-term contracts to attract and retain the best instructors.) Instructors would probably maintain a small private practice on the side. Instructors would be evaluated on the basis of their success as teachers. Successful teaching would be measured by an examination administered by the university and given to students before they graduate. (Because the examination would test skills, it would likely be only in part a written exam.) Evaluation of instructors could also be informed by the success of graduating students on the bar exam or in obtaining employment.

The academic law department would be very different from the professional school. It would be staffed by tenured and tenure-track professors. The principal task of these professors would be research and writing. Like faculty members in other departments, they would also teach (more on this below) but teaching would not be their main function. These professors would be career academics. They would have earned a PhD in law from a university law department. There would be no requirement that they have attended a professional law school themselves. Practical experience would have little weight in the hiring process, just as it has little weight in other academic departments (a political science professor isn’t normally expected to have had a career in politics). Law professors would seek grants, conduct research, and produce scholarship mainly for other professors but also to inform public debates. The academic law department would be located in a separate building from the law school, closer to the other social science departments of the university.

In order to earn a law degree, a student would take skills courses from instructors and academic courses from professors. There are different ways of dividing up the labor. One choice is for professors to teach purely academic courses like legal history and jurisprudence and leave everything else to the instructors. Another option is for professors to teach the basic doctrinal classes—Constitutional Law, Copyright, and so on—with instructors teaching skills courses like Constitutional Litigation and Intellectual Property Licensing.

There are three main benefits to my approach. First, it recognizes more than our current model that the law is both a subject of academic study and a professional field and that these are distinct features. Second, my approach would improve legal scholarship because the only people producing scholarship would be those who are highly skilled in doing research (and who therefore understand the difference between research and advocacy) and the scholarship would be evaluated in the same way as scholarship in other academic fields. Third, my approach would produce law school graduates with stronger legal skills.

Comments:

Paul Kahn wrote a beautiful book some years back called, "The Cultural Study of Law." It advocated an academic approach to the study of law grounded in philosophy and anthropology. This discipline would be divorced from the project of reform that dominates contemporary legal scholarship.

To me, this is a more useful distinction.

Separating the current reform-minded academic project from practice would unmoor it (or, as some would say, further unmoor it) from the world of practice.

Likewise, separating the teaching of "skills" from discussions of the theory that informs which skills are necessary would be both difficult and pernicious. Even at Yale, my favorite classes are those that use doctrine as a framework on which to hang theory.

The beauty of professional education is the resilience and depth provided by the integration of practice and academics. Richness and rootedness extend in either direction.
 

This is a very interesting proposal. I think you would find it very interesting to think about how medical schools handle this same issue. In medical schools there are clinical departments staffed with clinical faculty and basic science departments staffed with basic science faculty. This distinction is somewhat analogous to your distinction between law theory faculty and law practice faculty.

However, one of the great things about medical schools is that the basic science and clinical faculty are members of the same school and the same faculty, and there is a lot of intellectual interactions and collaboration, both in research *and* teaching. Your proposal to separate theory and practice law faculty would greatly reduce the extent to which theory and practice could inform one another, and act as an unnecessary and counterproductive barrier to what we in medical schools refer to as "translational research", which means research directed at taking basic research findings and figuring out how to "translate" them into practical outcomes relevant to medical practice.
 

Professor Mazzone’s observations are particularly apt and he is to be roundly lauded for his observations.

The unassailable fact is that the current system of educating and training lawyers is completely broken down n every possible way. I have addressed this issue at some length in my recent book, “Navigating the Perfect Storm: Recruiting, Training and Retaining Lawyers in the Coming Decade” (Ark Press, 2010) .


As John Kennedy famously said in 1961, “Victory has a thousand fathers and defeat is an orphan.” Finger pointing for the complete educational equivalent of bankrupt a system is now run amok. The blogosphere is replete with hundreds, if not thousands, of postings by law school graduates accusing law schools of virtual outright fraud in their own recruiting process. Too many law school faculty members in turn, sadly lay the blame on law school applicants for failing to adequately investigate the facts prior to enrollment or in at least one instance, the Dean of Rutgers Law School, goes as far as blaming law students for corruptly viewing the ability to earn a living as lawyers as an “entitlement program.” The comments posted in response to the comments of Dean Farmer of Rutgers in the ABA Journal are instructive, if not in the least bit surprising.

Others blame universities for attempting to burnish their own images by creating yet additional law schools. Others point a finger at the American Bar Association for willy nilly granting accreditation to law schools, while there is simply no possibility that the profession will be able to absorb a very significant number of the 45,000 new law school graduates which will be churned out in the near term. These coming generations of graduates are fairly universally described, even by the National Association for Legal Placement as the “Lost Generation.” NALP itself has no shortage of detractors, both from pundits and important leaders of the bar.

Professor Mazzone, among so many few others, seems to comprehend the essential point: The cause of the current meltdown of the legal education system in the United States is that law school graduates upon receiving their degrees, lack the basic skill sets necessary to apply their academic knowledge to the real world . Current purported “clinical programs” largely have no application in the commercial world. In lush times, law school graduates would devote the bulk of their first and second years of law practice in on the job training, for which clients were billed on an hourly basis. Because of the hourly billing, pyramid structure of law firms, these young lawyers were encouraged to bill as much time as possible to their learning period; indeed they were penalized for not meeting minimum hourly quotas and rewarded with bonuses for billing large amounts of time for the training experience.

The Great Recession wrought revolutionary changes. Corporate clients simply rather uniformly announced that they would no longer pay for time billed by first and second year associates. The effects on recruiting were obvious.

The United States stands fairly alone in not requiring a period of mandatory clerkships, or stagers, as a condition for bar admission. It is also one of the few countries that does not require passage of examinations on practical skills prior to be called to the bar.

Jerome Kowalski
Kowalski & Associates

Some solutions (rather than pointing the finger of blame), are obvious. Professor Mazzone touched on some of the obvious solutions. I have dealt with them at greater length n my book.

In addition to extending kudos to Professor Mazzone for stepping up and identifying where change in law school academia are necessary, given corporate clients’ current universal demands for the efficient delivery of a quality product within budgeted amounts. Law schools must also include within their curriculum courses teaching basic project management skills and the application of those skills in a real world context.
 

Instructors would not have tenure because they wouldn’t be engaged in academic research and so wouldn’t need it.

Or, to put it another way: instructors would simply be adjuncts. The idea that tenure is only advantageous for those engaged in academic pursuits is ridiculous.

On the one hand, it's a lousy way to attract talent ("long-term contracts" might appeal, but the university has no incentive to offer them if adjuncts are available, and adjuncts are always available). On the other hand, it might give the field a lot more new positions for the tsunami of law school graduates, as long as they don't mind making adjunct pay that can't begin to address their monthly expenses, let alone their student debt.
 

With respect to tenured law professors, it might be interesting to get an idea of their sources and amounts of professional income other than directly from their teaching and academic research to compare with their teaching and academic research income. This might be compared to incomes of tenured law professors going back several decades. Also, actual hours of classroom teaching would be important for comparative purposes. What happens when tenured law professors become "celebrities" because of their academic roles and how do they "cash- in" on such?
 

This is a very interesting proposal. Two questions occur to me. First, how would this impact, if at all, the issue of cost of legal education? Second, while I see how it would produce graduates with more immediately useful skills, it is not clear whether it would address the issue of the excess supply of lawyers currently being produced by the law schools.

At the DC Circuit Judical Bar Conference this spring, there was a panel on the future of legal education. I don't recall anyone offering a suggestion quite this radical, although there was a lot of discussion about how to get law students more practical education. I would what kind of reaction Professor Mazzone has had from the powers that be in legal academia?
 

mls asks:

"I [wonder] what kind of reaction Professor Mazzone has had from the powers that be in legal academia?"

I imagine for the most part, it would be reactionary. When one's job is threatened, that seems to be the response from blue collar workers on up (e.g., Wall Street).

The question I have, is:

"How prepared are law school graduates upon passing the bar prepared to actually practice law?"

A follow up question is aimed at the law schools:

"How well are the law schools preparing students to actually practice law?"

Back in my day (1954) in Boston, the two most prominent law firms each had no more than 12 partners; and associates at these firms were well less than 1:1. Today, with the expansion of law firms, the goal of many law students is to join a law firm. Back in my day because of the lack of such opportunity, we might "apprentice" for a while at low wages with a solo practitioner or small partnership while trying to develop a practice; many of us just put up a shingle. And it worked quite well for many of us. Today, the large law firms vigorously train their new lawyers and charge the costs to clients. It seems clear that the large law firms, with these bright young attorneys from top law schools, are not quite satisfied that the law schools have prepared them to practice without specialized training (that may vary from firm to firm).

As to the expense of law school, I point out to young attorneys that the highest tuition I paid was $400 for my third year of law school. This was manageable with family help, summer jobs, etc, as a commuter student. (As I recall, Harvard Law School tuition was $500 back then.) Perhaps comparisons should be made between law schools back then and now to attempt to identify the reasons - and whether they are valid - for increases over the years. (The same issue applies to all higher education.) Perhaps the ease of student debt contributed to tuition rises, sort of like sub-prime mortgages.

As to the number of attorneys being controlled, this concern goes back to my days (and before), as each year more and more attorneys - competitors - would be admitted to the bar. But what controls can be applied that would be fair? (No student loans?) Does the law of supply and demand govern? Is it like the Field of Dreams: If you become an attorney the clients will come? Or will the practice of law become a commodity? (Consider recent articles on large law firms outsourcing legal scut work to India at significantly lower rates than paid their associates here.)
 

Of course, these proposals are not exactly completely novel. This is precisely the way that legal education works in the UK & Ireland where there is a strict separation between the academic study of law as a discipline and the vocational study of law as a profession. So in the UK and Ireland one does a law degree, primarily taught by legal academics who have law degrees, masters in law and, now almost always, a PhD in law or a cognate discipline. There are usually some practising lawyers who teach as well, with most schools trying to ensure a good mix, and increasingly undergrads get some experience of clinical legal education but primarily law is taught as a discipline at this point. One then goes on to a vocational course (if desired) in law to become a solicitor or barrister with the substantive legal knowledge not being retaught, but rather the professional rules and skills (drafting, advocacy, practice and procedure etc...) being taught. This works very well--it leaves law as a real option for the person who is interested in it as an academic disciplinary pursuit, perhaps with a view to advocacy/politics/business/the academy later in life and also offers options for professional pursuit of the law while leaving those of us who teach law in university with scope to help students explore law and its workings from a variety of different perspectives.
 

An interesting thought, but my fear is it would quickly result in the transformation of law schools into essentially trade schools with relatively small if any academic "law" departments in most universities. An amendment: why not follow the rest of the world and put the ENTIRE teaching of law in a regular academic department that had to compete with English, history, etc. as an academic major at the undergraduate and (in appropriate cases) graduate level? Students who wanted to practice law would take their undergraduate degree, do a few years worth of internships (and perhaps a year or two of graduate school for specialties) while those who wanted to teach would do a PhD, not in economic, philosophy, etc. but in law itself? I suspect this won't ever happen, because universities would get only four or five instead of seven years' worth or tuition from law graduates and law professors would lose the huge protected market that they now enjoy. But isn't this one place where the rest of the world might be right, and won't students in our interconnected world start to notice that fact?
 

I can't help but to think that the model offered is a cure for which there is no corresponding disease. It's not that American legal education doesn't have serious structural problems; it's that the proposal made pretty much avoids those issues.

While law school tuition generally increases at a hyperinflationary rate and new law schools continue to open, the number of entry-level openings -- especially at salaries that would make law school tuition seem a prudent investment -- has not seen its ranks swell at anything near similar rates. Indeed, both the short-term and longer-term trends are rather bleak; the recession takes its toll on legal sector employment, and outsourcing of legal work has begun in earnest (http://www.nytimes.com/2010/08/05/business/global/05legal.html).

These phenomena should, at some point, cause a contraction in the number of law schools; certainly status quo is unsustainable. Law school makes dollars-and-cents sense if one attends an elite law school, attends a public school with heavily subsidized tuition (and increasingly the subsidy rate is vanishing to nearly zero in many states), or attends a school (typically lower tier) with tuition reduced or paid for by fellowships.

Viewed against that background, I'm not sure how the proposal made helps matters. One certainly does not need law school to teach towards a bar examination that covers things like 'the common law of crimes' (in which arson isn't 'arson' if one burns down his own home, and in which it isn't 'burglary' if one burglarizes his neighbor's apartment at 2 o'clock in the afternoon).

I view the endorsement of withdrawal of tenure-like protection for clinical/skills faculty members as neglecting to keep up with the news; see the last section at: http://www.insidehighered.com/news/2010/07/26/law .

The proposal seems on the right track to me insofar as it recognizes something useful in division of educational labor. But because it fails to take into account why financing a legal education makes for more and more students less and less sense, it misses the solution entailing that law -- a rich discipline surely worthy of being an undergraduate major -- should be taught to undergraduates. Those students interested in law as a profession could then seek to apply that knowledge with the training that they receive in law school, a professional school that doesn't have a three-year curriculum. Cf. Fiona de Londras's comment. There is little gained by maintaining law as a purely graduate discipline and we risk law being something that only those in the law student caste are rigorously exposed to as an intellectual discipline. Thus, there would be two routes to a JD degree: the conventional three-year JD degree now offered at law schools (available to anyone with no coursework prerequisites), and a combined BA/BS-JD degree taking less than seven years to complete.
 

PMS_CC
On the one hand, it's a lousy way to attract talent ("long-term contracts" might appeal, but the university has no incentive to offer them if adjuncts are available, and adjuncts are always available). On the other hand, it might give the field a lot more new positions for the tsunami of law school graduates, as long as they don't mind making adjunct pay that can't begin to address their monthly expenses, let alone their student debt.

As it stands tenured legal academics make considerably more money than their counterparts in the liberal arts departments of universities. There are also many more of them then would be needed in a research focused department. Once these problems are fixed a great deal of money would be freed up to a) lower law school tuition and b) pay instructors a reasonable salary. As instructors (teachers really) are not fungible, a school that cared about its students (ha!) would offer such a salary to attract instructors that were good at teaching. While there is certainly a flood of adjuncts on the market, in my experience there isn't a flood of adjutants who are excellent teachers.
 

Point well made, Bradley. I'm speaking from my own experience as an adjunct instructor in social science. In the current budgetary climate, I think public schools would be tempted to reallocate any money saved by laying off the overpaid anchors to cover losses in other departments, rather than to focus on hiring new instructors. Many public colleges have hiring freezes; if tenured people retire, they simply let the position remain open. If a required class was the exclusive domain of that faculty member, they get adjuncts to fill in.

Even at private schools where money is not an option, I'm not convinced that the best instructors are hired. In many cases, I suspect that the "success of graduating students" on the exam that Jason proposes would be more a function of restricting enrollment to the brightest students than the actual quality of instruction.
 

Forgive me for being the extreme cynic, but it's just not clear to me that legal academics know anything. It's at least worth saying that the standards of legal scholarship are so low that dust mites would have trouble crawling under them. If I believed that there was an object of knowledge worthy of research I might be inclined to agree that it would be worthwhile to separate legal academics from skills instructors, or to make any other proposed reforms.

But that's not the case. I know I'm taking about three overly simplistic positions, but a) law that can be "researched" is just words on a page, b) legal academics regularly avoid all relevant forms of empiricism in favor of disguised (and not so disguised) opinions, and c) the law that is not on the page would be the domain of practical instructors.

To put it another way, if law is, as OW Holmes argued, a prediction about the behavior of judges, then that is not something a researcher can really accomplish without reference to the judges at issue.

BUT, at the same time, the fact that I can reference Holmes doesn't mean that I know anything about law. Neither does any professor who spends his or her career opining about the constitutionality of this or the likelihood of that.

Law school doesn't exist to impart knowledge to future lawyers. It exists to create a barrier to entry into the profession. It is just one more way to guarantee that people who become lawyers have some vested interest in their career. Once you've spent $120,000 in tuition and three years of your life, you pretty much have to work as a lawyer and come to believe that what you do is worthwhile. Law school exists to create debt and cognitive dissonance.

Once that is accepted, it doesn't really matter how, or if, the programs are designed.
 

I rather agree with what Mr Kowalski says. Ms de Londras who teaches in Dublin well describes the Irish and English arrangements as they now are, but what she does not make clear is that not so very long ago, a law degree was not required to start professional training either as a barrister or a solicitor. The bar was the first to require all graduate entry – but the degree did not have to be in law and many chambers preferred to take on pupils (trainee barristers) whose degree was in a subject other than law. A degree in chemistry or physics or engineering, is often of more significance to the understanding of some issues in a civil case than, say, knowledge of how to manumit a slave under the law of the XII Tables. Formal legal education for the bar was under the auspices of the Council for Legal Education.

Solicitors were much later in requiring all graduate entry, training was entirely vocational which commenced by taking articles of clerkship (an apprenticeship deed) to an admitted solicitor. Formal education was at the College of Law. Even today, no solicitor may be admitted until he(she) has served two years as a trainee and a solicitor once admitted may not practice alone for a further two years, but only under the supervision of a more senior solicitor.

Here is a web page which sets out with good accuracy the salaries of the leading London firms for the first five years: Roll on Friday – City Firms. The point to note is that during the first two years of pre-admission training, a trainee will make very little contribution to billing. That is also relatively true of the next year. It is only from three years in that the partnership really starts to benefit from the newcomer’s billings by which time a law firm will have spent about £180,000 on salary costs and probably nearer £400,000 when the costs of in house training and supervision are factored in. That is a heavy burden which has to be paid for out of other peoples’ billings.

No trainee is guaranteed a place at the end of the training period and the old practice was to take as many people in as possible and progressively weed out the duds. With the rising costs of training, it is inevitable that firms will be forced to be more selective at the initial recruitment stage.

One thing which would reduce the training burden in England would be to have our secondary school system ensure that pupils left school with rather more literacy than is the norm today. It would also help if universities abandoned multiple choice questions for tests and examinations and instead required answers in essay form, which can be marked down for poor syntax, bad style, incomprehensibility, etc.

I used to give all new trainees assigned to me a excellent little book called the “The Complete Plain Words” which was written for the post WW2 civil service by Sir Ernest Gowers (who later edited Fowler’s Modern English Usage) to help bureaucrats to write intelligibly to citizens. Nowadays it can be found on-line as a free download and a hard copy retails for around US$5. I found that presenting this very cheap style guide always saved me a lot of time because it reduced the need for repeated reviews of inadequate trainee drafts of letters, memoranda and the like.
 

I agree with a lot of JMs observations, but I disagree with his solution. The biggest part of the problem is that there is already a separation between theory and practice. I think that a better solution would be to team the "professional instructors" with the "academic theorists" and help the students bridge the divide between the two. And each should have an equal status in the law school because status is not lost on students.
 

I think this approach to law school is reasonable. Law schools cannot be so different in the core of what they teach depending on the school but there can be certain differences depending on which graduate law school one attends. Also, I think that specific training and learning writing and thinking skills is very important to law students. I agree that skills can be acquired during a job and is more likely to be helpful to the person rather that learning it in a classroom. Learning to write and discuss effectively is also important to law. I feel that these are the things that should be focused on in law school. One is taught and affiliated with different ideas through school but to get to the mentality of a lawyer or one who practices the law, it is important to understand the concepts behind laws and why the law stands. It may be hard to separate the skills from theory and discussions of laws, I think the emphasis should be on the theory and discussions. The skills can be acquired later but the theory and discussions of law create the basis of decisions made according to the law.
 

Sandy's post a couple of years ago at:

http://balkin.blogspot.com/2007/12/thinking-like-pundit.html

on how to think like a pundit includes a reference to my conlaw professor Thomas Reed Powell's learning to think like a lawyer. Take a look-see, including comments by me and Joe back then.
 

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Jason, this very informative! thanks for sharing this with me!!


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I know that all who care about improving legal education are indebted to Judith for her incredibly powerful contributions to the Carnegie team which produced Educating Lawyers. I very much look forward to reading this new piece.
 

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