I've received a couple of furious emails from an outraged colleague who claims that this blog is attacking him personally by "broad-brush insulting all law profs, and more specifically those at your school." He's angry enough that he decided to try to "out" me because, he said, "I'm not going to let this remain a one-sided fight whereby I'm attacked publicly and you get to hide from attacks." It's clear this blog isn't going to remain anonymous for much longer, so I'm going to say a couple words about why I started blogging anonymously in the first place.
Anonymity isn't my style (this blog is the first anonymous thing I've ever published , and I've published a lot), but I thought I would give it in a try in this context, for at least a little while, as a kind of stylistic experiment. Anyone who does genuinely critical work soon learns that the classic knee-jerk response on the part of those who don't like the criticism is to attack the messenger rather than the message. So I thought it be worth authoring this blog more or less anonymously, at least for awhile, to try to keep the focus on the substantive criticisms. I also didn't want to give the impression that these criticisms are directed at my law school in particular: they most certainly aren't. I'm talking about systemic and structural failures, rather than those of particular institutions (let alone particular individuals).
But the law school world being what it is, this has proven more difficult to do than I anticipated. Law students and lawyers are all familiar with the kind of emotional regression that tends to take place in law school, where the social atmosphere often resembles a particularly gossip-ridden junior high school (Indeed one of my most strident public critics has constructed an entire legal academic career around trafficking in junior-high level gossip). So I'm not sure how much longer maintaining formal anonymity will make sense in the context of this project.
That said, it's still striking how much law professors personalize criticisms that are in no real sense personal, but rather systemic. If most law school teaching is bad and most legal scholarship worthless this can hardly be a result of anything but the results of a system that takes lots of bright, ambitious, otherwise-accomplished people and turns a very large number of them into bad teachers and poor (or perhaps more accurately pseudo-) scholars. If, under present circumstances, we law professors as a group are in many ways scamming our students, that isn't because law professors just happen to be people of poor moral character, but rather because we have, despite our best intentions, ended up embedded in a scam-like social structure. It's the difference between Bernie Madoff on the one hand and, on the other, investment bankers collecting gigantic fees for trafficking in overly complex financial instruments whose actual risk-return ratio nobody really understood. Madoff was scamming by breaking the rules, but the investment bankers were also involved in a scam -- although of a fundamentally different kind -- as well.
The fundamental difference, of course, is that Madoff's scam was a crime, while the investment bankers' scam was perfectly legal and extremely prestigious and profitable and respectable (at least until it helped wreck the world economy). If you had told Dick Fuld et. al. in 2007 that they were running what would as a practical matter end up looking like a financial scam they would no doubt have been deeply outraged. "We're creating value within a new paradigm!" they would have replied. "How dare you impugn our motives and our character and our devotion to the highest standards of etc. etc?" That doesn't mean the investment bankers selling what turned out to be crap CDOs as fast as Budweiser at a ball game on a hot afternoon were bad guys, in the same way Bernie Madoff was a bad guy. In their instance the problem turned out to be the game, not the player.
And that's the fundamental problem with legal education right now. It would be childish and absurd to say that the answer to legal academia's problems would be to maintain the present system more or less as it is, but to hire better law professors. That makes as much sense as keeping the same financial system we have in place, and just trying to hire better investment bankers. Real reform means structural reform. And a key element of undertaking structural reform is to not take criticisms of the structure personally.