an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
David Segal has an articlein The New York Times called "What They Don’t Teach Law Students: Lawyering." The article rehashes some old complaints about legal education: law schools emphasize the theoretical over the useful; professors don't have practice experience and spend too much time writing law review articles; and employers have to train law school graduates before they can work for clients.
Like most critics of legal education, Segal doesn't offer much in the way of a workable plan for reform. This might be because Segal himself doesn't seem to know very much about the law or about legal education. (For example, he makes the odd claim that criminal procedure, a topic he thinks involves "case studies about common law crimes like murder and theft," pays no attention to plea bargaining.) It might also be because when you get right down to it, it is actually very challenging to design a curriculum that will make lawyers successful professionals in the rapidly changing legal marketplace.
Instead of any detailed guidance, Segal tosses out three things law schools should be doing differently.
His first idea is to tell students things they really need to know. Segal's article begins, then, with an anecdote about a law firm partner training new associates. The lesson--law schools, listen up!--goes like this:
“How do you get a merger done?” asks Scott B. Connolly, an attorney.
There is silence . . . .
The answer — draft a certificate of merger and file it with the secretary of state — is part of a crash course in legal training.
The second thing Segal suggests is that law schools hire more people with experience working as attorneys. Segal evidently thinks it so obvious that this would improve legal education that he says nothing more about it even though the proposal presents a host of questions and challenges (how much experience? in which fields?) that have been discussed and debated for years.
The third thing Segal wants is more clinical training. Most law schools, of course, already offer clinics (as well as externship programs). Segal's problems with clinics today are that (a) there are not enough of them and (b) they are staffed with instructors who are not tenured.
Here, some chickens come home to roost. Throughout his article, Segal scolds the high cost of legal education. Yet clinics, because they involve a great deal of individual supervision, are expensive. More clinics mean higher tuition, possibly much higher.
As for the proposal for tenure, that too would seem to cut against Segal's broader ambitions. If the goal is to have in law schools skilled attorneys who can train students to hit the ground running and meet the precise needs of the clients of the future, surely it would be a mistake to fill up teaching slots, permanently, with people who developed their own skills in an earlier era. Tenure of skilled professionals is exactly the wrong way to keep practical legal education current.
Finally, Segal would do well to take a look at what law school clinics actually do. He will be hard pressed to find one in which students learn how to do a merger. If Segal is right that there is a problem, more clinical training of the kind we have now isn't the solution.