Monday, August 29, 2011

What law schools accomplish: We're talking about practice

For the last 20 years (and well before that for all I know which I don't) every high profile reformist commission/panel/whathaveyou that has looked at legal education has come to pretty much the same conclusion: law schools don't teach people much if anything about practicing law, and they should do something about that.  Of course lawyers have been saying the same thing for even longer, although in the typical fashion of this business, the fancier law firms, who in theory could use their hiring policies to make the fancier law schools behave differently, have never done anything to put any real pressure on such schools to engage in more vocational education.


Why do law schools engage in so little vocational training?  Let's consider the vocational training, loosely speaking that does happen in the contemporary law school.  This takes three forms: clinics, legal research and writing courses, and more traditional courses that are designed to have what is now being called an "experiential" component.

Clinics are very expensive, and at most schools remain relatively low-status entities.  Clinical professors are often non-tenure track, and schools tend to have strict limits on the number of clinical courses students can take. This is in part because clinics aren't considered academically serious by lots of both traditional doctrinal and "law and" faculty, and in part because at most schools the carrying capacity of the clinics is limited enough that it would be impossible for every student to take even one clinic over the course of his or her law school curriculum.  (Again, clinics are very expensive).  The biggest problem with any serious emphasis on clinical legal education is that it threatens to raise all sorts of uncomfortable questions about the rest of the law school experience.  If law schools start looking more like culinary institutes (in which students pretty much do nothing but cook all day) then doesn't it make sense to de-emphasize the overtly academic side of the enterprise altogether, and move more explicitly, as is the case in so many other legal systems, to a post-college apprenticeship model of some sort?  This is obviously a question that the contemporary legal academy would prefer not to even entertain, let alone answer.

Legal research and writing courses are also expensive, although less so than clinics, because of low faculty student ratios. They are also low status (a pattern is developing here), and are generally taught by non-tenure track faculty.  Lawyers love to complain about how freshly-minted law graduates can't write, and no doubt many can't (of course huge numbers of long-time practicing attorneys and judges can't write either).   The problem with teaching law students how to write is that it's almost impossible to do anything about students' basic writing ability by the 18th year of their formal education. By that time either you can write well or you can't,and nothing is going to change that.  Now there's the narrower technical matter of teaching specifically legal writing, but learning legal writing, like all other writing, is almost completely a matter of imitation through practice. (That is, when it consists of something more inspiring than cutting and pasting proper nouns from one document into another and having that work billed out at $400 an hour).

As for traditional courses, one reaction to the Carnegie Foundation report has been to begin to put more evidence on so-called "experiential learning" in the classroom (this is a misnomer, as in education theory "experiential learning" means, not surprisingly, learning through direct experience of the thing one is learning about).  I'm skeptical about the the extent to which classroom simulations of trials, negotiations, and the like can have practical value, given the vast differences that must exist between simulations and the real thing. (Perhaps the most obvious example are trial advocacy courses in which, for instance, the witnesses are working off a script. In a real trial people are constantly going off script as it were).

Anyway, the biggest problem with experiential learning courses taught by tenure-track faculty couldn't be more obvious: the vast majority of tenure-track professors have very little practice experience, and in many instances what little experience they do have is at this point largely outdated.  The other big problem with doing vocational training within the context of an academic unit of a university is that it's almost certain to be wildly inefficient.  For one thing, lawyers do a vast array of professional tasks, although from watching TV and going to law school one could easily get the impression that they really only do one: Preparing for and then appearing in court.  Beyond that, both the substance and the economic structure of the various kinds of legal practice is always changing, and never more rapidly than at present. As Bruce MacEwen points out, "the future is almost certain to unfold in ways that will mock any [vocationally-oriented education] scenario we could come up with."

Law schools as they are currently structured can't deliver significant amounts of vocational training at all, and it's difficult to envision how they could be restructured in a way that would allow them to do so at a reasonable cost to their students, especially if they were to remain academic units within research universities. At bottom, the problem with trying to teach practice within a university setting is that the best and most cost-effective teacher of practice will always be practice itself. 

100 comments:

  1. (Partially reposted from the last thread since it's probably more relevant to this discussion):


    My first year law school curriculum taught me absolutely nothing about thinking like a lawyer; it taught me instead to think like a law school professor or, more parochially, to think like a first year law student. All law school teaches you to do is how to take a law school exam and, even then, it does a terrible, terrible job of it. Even my LRW class was a complete waste of time (although this was owed to a famously mercurial professor who essentially graded you based on how often you visited him in office hours).

    I learned tons more in my clinical experience (which, I will say, was significantly more intensive than the average clinical experience; we're talking BIGLAW-type hours for zero pay) than I could have possibly learned in class. Moreover, the reality is that law school teaches litigation, a venue of practice which the vast majority of lawyers do not experience. This is not to say that the standard first year contracts (or, to a less extent, property) curriculum is irrelevant to the practice of corporate law, but to pretend that appelate case law is even an appropriate vehicle for understanding law as practiced is simply mind-boggling to me.

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  2. And I guess the next question would be: do law schools even do a good job of teaching what they're actually teaching (as opposed to what they should be teaching).

    I will say no, full stop. I have never once heard a compelling defense of the prevailing law school pedagogic model of one exam/one grade.

    Actually, let me qualify that: I can think of one defense for it. Law school, in its current iteration, is not designed to teach students a discrete set of skills, but to most readily identify to propsective employers those who already innately possess these skills.

    I'll leave this open to debate, if anyone is interested.

    -vbp

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  3. Law school, in its current iteration, is not designed to teach students a discrete set of skills, but to most readily identify to propsective employers those who already innately possess these skills.

    I don't know if it's designed this way, but it certainly seems to serve this function better than any other.

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  4. http://balkin.blogspot.com/2011/08/snapshot-of-law-student-debt-that-every.html

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  5. Not surprisingly, I gained much, much more in the way of practical skills from working as a summer associate in a law firm than from my 3L clinical course. The main benefit of my clinical course was that it gave me partial relief from the boredom of yet another course spent reading cases. (Of course, only a small fraction of law students have the luxury of a summer clerkship.)

    One other point regarding practical training: The better a law school is, the more likely it is to draw students from numerous jurisdictions. This makes it almost impossible to give practical education that will really be useful to most students, because learning to practice largely means learning how things are done in a particular state.

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  6. @7:36am:

    My question for you, then, is how many within the academy would necessarily defend this function (however unintentional it may be).

    Some in (what I have identified as) the "Achiever Caste" certainly would (Justice Scalia comes to mind, but so do a number of BIGLAW junior associates; I've deteceted that BIGLAW lawyers become less and less self-satisfied the more senior they become).

    But I wonder how many in the academy feel the same way.

    -vbp

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  7. The thing about the summer associate route is, by its very nature, it is unavailable to the vast majority of law students these days. If you are shut out at OCI, it's hard to imagine how many summer associate opportunities you will have (unless you're using a far more expansive definition of the term).

    -vbp

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  8. I find these posts frustrating because it is so obvious to everyone what is wrong with law schools (except to shockingly stupid and self serving law profs like Leiter and Althouse. Id like to thank this blog for introducing me to those troglodytes of higher thinking). But it just goes on and on and on with no seeming end or change. Perhaps change will finally come when massive loan defaults start happening and one particularly deranged unemployed attorney goes on some sort of shooting spree. Sadly I think that is what its going to take. And even then the reforms will more than likely be superficial. What a sad dirty little world we live in.

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  9. The better a law school is, the more likely it is to draw students from numerous jurisdictions. This makes it almost impossible to give practical education that will really be useful to most students, because learning to practice largely means learning how things are done in a particular state.

    The National Institute for Trial Advocacy is multijurisdictional and does really first-rate deposition and trial training for litigators. As for transactional lawyers, they are rarely concerned about "how things are done in a particular state" (unless we are talking about Delaware).

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  10. And remeber, again, we're only talking about exposure to trial practice; how many practicing lawyers even do litigation?

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  11. Excellent post again.

    "Clinics are very expensive, and at most schools remain relatively low-status entities. Clinical professors are often non-tenure track, and schools tend to have strict limits on the number of clinical courses students can take. . . . The biggest problem with any serious emphasis on clinical legal education is that it threatens to raise all sorts of uncomfortable questions about the rest of the law school experience."

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  12. Back in the '90s, when I was in law school, my school offered an 1L elective called something like "Lawyering 101." It was taught by two big law mid-level associates who were trying to break into academia. Maybe I was just lucky in the instructor I had, but she did an excellent job (as I later found out) in teaching us how to research "live" matters of the sort we were likely to get in practice and how to write in a way that partners would appreciate. From a teaching standpoint, it was a very labor-intensive course, with a lot of one-on-one feedback.

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  13. By the way, this post touches on one of the biggest problems with the law school heirarchy - it devalues actual experience. But who would you rather be taught by: A seasoned 20 year litigator or Brian Leiter? A seasoned transactional attorney or a Law and Mayan Gender Studies professor who never practiced? I would take the former in each case.

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  14. Having followed this blog for some time i've seen a great deal of general discussion of law schools as a whole. With that in mind, regarding this recent post, I would appreciate LawProf's (other readers may also feel free to chime in) thoughts on whether or not a single law school currently exists that has a curriculum which is more akin to what his ideal model of pedagogy would look like. Are there any schools that are even on the right path? While all law schools have a long way to go if they are to reform themselves as thoroughly as might be desired by this blog, is there a school (or two) that may be moving in the right direction or could serve as a possible model.

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  15. Very few 1L's wind up taking "Law and" courses. Insofar as the problem is (partially) that law schools set the vast majority of students up for (substantive, if not numeric) failure by the end of their first year, I think it would be better to focus on how most law professors don't even teach their foundational first year material that well.

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  16. This is an interesting and accurate post by law prof, but can anyone explain how offering a completely clinical experience change the supply and demand situation? You would still have 50,000 students graduating each year into 15,000 to 25,000 law job openings.

    I don't care if the three years of law school are spent in court as an apprentice, you would still have half of every graduating class unable to get a legal job.

    This is a very simple mathematical, basic econ101 problem that law professors keep trying to skirt.

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  17. I appreciate the Allen Iverson reference!

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  18. I spent two years as a full-time tenure-track law professor after nearly twenty years in practice. (I quit for many of the reasons that this blog is exploring, among them the fact my school kept increasing enrollment even as its alumni were having trouble finding decent jobs.) I was at a very low-ranked law school and therefore one that was self-consciously committed to preparing students for both the Bar exam and for practice. But here's the rub: The senior faculty and administrators were career academics with no real idea what practice actually entails. And those were the people charged with designing curricula, etc. Pronouncements regularly issued at faculty meetings about the need for this or that "experiential learning" experience or other buzzword-laden program. Most of these were just parroting a watered-down version of the latest fashion in education theory. Every year brings new reports by blue-ribbon commissions, Big New Ideas such as using simulations or clickers in the classroom. Yet the same complaints about legal education have persisted for decades. (As an aside: How many folks seriously believe that implementing the theories pouring forth from the education departments of America's universities has actually improved education - at any level - in this nation over the past 30+ years? So why would you think "innovative" approaches to legal education brought to you by the inmates of adjacent asylums will be any better?)
    My point is not that we shouldn't try to innovate, merely that reform of any educational institution that is run by the same folks who currently populate those institutions isn't likely to be very fruitful.
    I'll also note as an aside that my brief stint in the academy confirmed the worst stereotypes (which I naively had discounted). It's crazy in there, folks.

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  19. Kudos to your integrity 8:52, even if it caused you to give up a relatively cush and well paying job.

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  20. I'll also note as an aside that my brief stint in the academy confirmed the worst stereotypes (which I naively had discounted). It's crazy in there, folks.

    I'd love to hear more, if you feel comfortable discussing it.

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  21. I think its conceivable, though no means obvious, that an increase in practical skills could lead to more "shitlaw" job opportunities. Shitlaw employers are the ones least able to afford to train people and therefore least likely to hire a person with no skills. At the end of the day though, there is only so much demand for legal services and better training won't do anything to increase that demand.

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  22. "I think its conceivable, though no means obvious, that an increase in practical skills could lead to more "shitlaw" job opportunities."

    How would teaching more clinical skills cause an increase in demand for legal services? One has absolutely nothing to do with the other. Shitlaw firms currently have a stack of 200 resumes for each $15-20/hour an our opening but still only hire one person, because they don't have enough clients to support more. Turning it into a stack of 200 resumes from "School with good clinical program" isn't going to increase that number of clients.

    Again, this is the problem with legal academics. They don't understand basic math or basic economic concepts. You can't create demand by increasing supply. Increasing supply just lowers the price of what you are selling, and as prices are down to zero now (how many unpaid internships do you see littering craigslist and getting 200 applicants each?) so any further increase in supply is completely unnecessary and harmful to the poor kids who you trick into attending law school.

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  23. P.S. Shitlaw firms have 4th year laid off V50 associates applying for positions. True story and I could give names (but of course I will not).

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  24. My question for you, then, is how many within the academy would necessarily defend this function (however unintentional it may be).

    I suspect they would defend it insofar as they feel an allegiance to big law and their alums who work in big law (and are a source of big donations).

    Interestingly, Harvard Law School's relatively recent switch to pass-fail grading was an anti-employer move. Firms hate pass-fail because it makes it much more difficult (if not impossible) to figure out how a candidate has done relative to the rest of his/her class. But students must like it, or else HLS would not have changed.

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  25. Harvard made that change because many firms believed that a median Harvard Law grad was inferior to a top 5% tier 2 grad, and were choosing the latter. Ballsy move by Harvard that will help their students, and will probably be emulated by other super elite schools (T5 or T6 max).

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  26. At August 29, 2011 9:48 AM , Anonymous said...
    My question for you, then, is how many within the academy would necessarily defend this function (however unintentional it may be).

    I suspect they would defend it insofar as they feel an allegiance to big law and their alums who work in big law (and are a source of big donations).


    I would anticipate this defense from maybe a few law school administrators, but what about the faculty who issue the grades themselves? I got the worst grade in my Crim Law class (and, believe you me, not because I didn't understand the material), and I struggle to believe that my Crim Law prof (whom I came to like personally) had any brief for BIGLAW himself.

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  27. (continued from above)

    And the question that I guess I'm trying to tease out is how much of the problem lies in the one exam/one grade model? Obviously, this issue is irrelevant to over supply, but it also makes law school a losing proposition from the first for the vast majority of law students.

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  28. @ 9:50, What is the source for that?

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  29. Law Prof -- You're probably better positioned to answer this than anyone: Where did the (largely successful) push for improved legal-writing instruction originate? Was it mainly coming from employers?

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  30. "And the question that I guess I'm trying to tease out is how much of the problem lies in the one exam/one grade model?"

    I personally think the one exam/one grade model is due to the laziness and opportunism of law professors. They could easily provide and grade one exam every two weeks, followed by a final exam at the end, like every other kind of professor, but why create more work for themselves?

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  31. 10:02: I don't know. I would guess that's right (25 years ago my LRW class at Michigan was taught by a third-year student).

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  32. I certainly think that it's been perpetuated by the laziness and opportunism of many law professors, but I don't believe this explains why it persists, or why anyone even thinks it's a valuable and necessary instructional tool.

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  33. I think the one exam/one grade model is a major flaw of the current structure of law school education. Where, pray tell, is the pedagogic justification? Frankly, it seems insane to introduce students to a completely new -- and deliberately obscure -- form of instruction and then give them absolutely no feed back until one final 3 or 4 hour exam.

    I would hazard to guess there is not one iota of research to support this odd methodology. It's done this way because it's always been done this way. It was good enough for John Houseman in The Paper Chase [man, am I dating myself!], so it's good enough now.

    Contrast this with the tremendous amount of research that goes into the efficacy of K-12 education. I suspect that no one delves into this because no one in power or benefiting from the system wants to know the answer.

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  34. Why doesn't laziness explain why it persists? If a law professor is lazy, and one exam per class is lazier than more exams, then why would the law professor want to add more exams?

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  35. The one exam/one grade model is like so many other things in legal academia a leftover from the 19th century practices of HLS, which for a very long time had one grade per class for the entire first year, not just per semester. Law schools adopted this model partly out of a tendency to mimic their hierarchical superiors, but mostly because it was cheap. Professors taught huge classes, they didn't have graduate assistants to do the grading, and the grading model kept instructional costs down by allowing high faculty to student ratios.

    Now the cost control is pretty much gone, but the model stays in place.

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  36. @David Frazer:

    That the model used in The Paper Chase is still entirely inplace today, nearly forty years later, should say something (also, considering that by the end of that movie, one character has gone insane and the other nearly kills himself, to say nothing of the fact that under no circumstances is sleeping with your Contracts professors daughter while still enrolled in his class considered a good idea).

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  37. Well, at my tier 2 school, at one point the Dean demanded that all 5 credit classes have one mid-term exam. You should have seen the protests from the professors who screamed bloody murder at the prospect of doubling their exam writing and grading load.

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  38. @10:18:

    Also, considering that most law school professors had to obviously have exceled at law school to get to where they are, it's safe to say that very few of them have ever found themselves on the wrong side of legal pedagogy and therefore see nothing wrong with.

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  39. One other benefit of the Paper Chase abusive model is that it beats the victims down into acquiescence. If you are ripping someone off, you don't interact with that person fairly. You don't treat them with decency or respect. Rather, you verbally abuse them endlessly until they are compliant. That's the whole point behind the socratic method - to but the victim on the defensive so that they don't dare complain about the fraud you are committing upon them.

    You see the same thing in abusive relationships, cults, sweatshops, pimps engaging in human trafficking and so on.

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  40. And again, (I'm the one who instigated this discussion about one exam/one grade), I'm not saying the pedagogical model is the major issue here. But it adds a further wrinkle to the degradation of the legal academy that underlying the high costs, the debt burden, the falsified job statistics, and the rampant academic sophistry is a pedagogical model literally designed to ensure that as few students as possible understand what is being taught to them.

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  41. Now, I was no fan of the socratic model, but I don't think I actively feared those professors who used it more eagerly than others. If anything, it seemed like a necessary (and relatively harmless) right of passage, even if it did wind up contributing to a psychological mindset grounding more in fear of public humiliation than actual eagerness to learn.

    My major beef with the socratic method is not that it's verablly abusive, but that it's applied to an area of limited analytical use. I can't remember ever feeling like I understood a case any better from either being on the spot myself, or having to listen to somebody else go through the same paces.

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  42. 8:52 (former law prof) again--
    When I went to college (mid 1980s), most of my classes were graded either via a single final exam or single paper. (I was an English major.) A few classes gave a mid-term or required three or four short papers, but that was unusual. Has the undergrad model changed that much in the liberal arts? (Yes, science classes had graded labs, more exams, etc.)
    In a section of ~80 law students, grading essay exams for a 3-hour course took me about 50-60 hours (really). Unless a prof gives multiple choice exams (which have very limited value for anything other than Bar exam prep, IMO), it really wouldn't be possible to teach two classes a semester with an exam in each every week.
    I did give mid-term exams in my classes (essay, not just multiple choice), which I think helped students better understand their material and assess whether they were following it. But many students hated having to prepare for and take a mid-term.
    Another point to consider: At no time in the practice of law will someone ask you to write everything you know about a given question/fact pattern in 3 hours without doing any research. To a certain extent, exams are artificial. Not sure if more of them is the answer (but I don't think we can do away with them entirely either).

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  43. Maybe something like a competitive one and a half year program to teach the traditional one lL courses, followed by a one and half year residency at a law firm, with the better students "matched" to better law firms, would be the way to go. Get the students the absolute basics they will need and then get them into a law firm or business corporate legal dept setting as soon as possible. Then the graduating classes can be specifically tailored to the number of openings that the firms have available. Similar to a medical school followed by residency match system. Probably even the one and a half year requirement could be met while in college.

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  44. It seems likely to me that law schools, if forced, will first attempt to address this issue by a focus on skills rather than supply. As others have noted, that will have little effect, but it will probably be easier for the law schools to do.

    Its similar to my local Congressman's plan to help the unemployed by hosting a "jobs bootcamp" to teach people resume and interview skills. As if unemployment were caused by poorly written resumes. But it lets the guy claim he's responding to the problem.

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  45. I don't have an answer to what the desired exam frequency is, but I will address your analogy to college exams:

    I went to college in the mid-to-late 90's and the model was usually two, maybe three exams, or two exams and a paper, or no exams at all, some smaller-scale research, plus a final paper.

    There is something about the particular complexity of a law school exam (in which you are asked to synthesize a lot of complicated information from dense, difficult to understand, source material, and do so under tremendous time constraints) that is not of a piece with your standard undergraduate essay exam.

    I studied a related field of political science, and essay questions almost always followed a model similar to this one: "What did person (A) have to say about situation (x) and how would you contrast it with what person (B) wrote about situation (y)" or "Outline the genersis and progression of (concept A) over (period of time B)."

    A law school exam aspires to ask you something closer to the following: "(Person A) has done (act b) which leads to(outcome c) and also (sub-outcome d) while living in (jurisdiction e) and also being employed by (third party d), and in doing so has caused (injury g) to (second party h) who is of (protected class i) in (jurisdiction j) and has also asserted (civil suit k) as a result of (Person A's) actions in (l amount of dollars). What is the likelihood of (Second Party H)'s being tried in her favor and able to withstand appeal."

    This is a highly unsophisicated (and probalby relatively easy) mock-up of a law school exam question from somebody who was chronically terrible at issue-spotting, but it obviously displays how a much more discrete and esoteric body of knowledge is required than on your standard college essay exam.

    The differnece is that, unlike in college, most law students walk into their law school exams fundamentally unprepared to take them, no matter how much they've studied.

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  46. "Maybe something like a competitive one and a half year program to teach the traditional one lL courses, followed by a one and half year residency at a law firm, with the better students "matched" to better law firms, would be the way to go."

    Why don't people understand the supply and demand problem re: there not being enough jobs to support the number of graduates? It's really amazing. If law firms don't have enough clients to hire people with 3 year degrees, then how are they going to have enough clients to hire (an even larger number of) people with 1 1/2 year degrees?

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  47. Professors at research universities in other other disciplines have graduate students to grade their exams when they have large courses.

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  48. Clinics and Clerkships at LS amaze me. First, you have a class of 300 people; yet maybe 75 total Clerkship and Clinical positions. Second, how do you get selected into a Judicial clerkship. In my LS you needed a 3.0 or better gpa for a Judicial Clerkship or a 2.7 or better for a family law clinic.
    If you (the reader) do know how hard it is to get a 3.0 in LS, then you don't know about the ABA forced curve. Most of my LS class had < 2.5 gpa. So the end result was that people that didn't worry about getting a job on graduation, the top 15% of the class, were getting into clinics. Unfortunately, those in the lower half who will most likely go straight to hanging out a shingle got shit practical experience.

    I always relate this to going into an ER and the Physician saying, "You're my first real patient that isn't room temperature."

    theyuppieattorney@blogspot.com

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  49. "Professors at research universities in other other disciplines have graduate students to grade their exams when they have large courses."

    This is a fair and absolutely correct point.

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  50. @10:56: Grading and exams isn't directly related to the oversupply issue, but it is a critical element of the scam in that the pedgagical model of law school is set up so that most law students lose at it.

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  51. How about this for a solution to the supply and demand of jobs problem? 1st year of law school is as it is now. But the second and third years are filled with "lawyer turned X other profession" courses. Like lawyer turned chef, or lawyer turned police officer, or lawyer turned accountant, or lawyer turned nurse, or lawyer turned financial planner, or lawyer turned pilot . . . That way, students learn the law, but they also learn skills that will actually get them a job.

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  52. The general topic of law school debt and uselessness isn't going to hit the general population until an unemployed 25 year old with 200K in non-dischargable debt sets him or herself on fire in front of the law school that stole his or her future. Sad but true.

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  53. @11:13:

    I bet that should such a thing happens the conversation will instead turn to whether law schools are providing adequate enough counselling services (the answer, as always, being a resounding No).

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  54. lol. Victimize poor kids and make up for it by using a tiny bit of your profit to hire a counselor.

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  55. Things don't change because doing that requires professors to step too far out of their element. It is unreasonable to expect professors to teach something they don't know. By selecting for academic achievement over experience, search committees and the deans who approve their recommendations propagate the inability for law schools to deliver anything more than what's always been done. Changing legal education requires changing this process to bring more experienced talent into the academic world as equals to the professors whose only credibility is a resume full of law review articles.

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  56. On 11:05, Brian Leiter could spend the first year teaching the philosophical underpinnings of Torts, and the second year teaching you how to change a muffler.

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  57. There is no counseling service that can remedy non-dischargable debt. Just money. Lots of it.

    Though, they might pump you full of anti-depressants to keep you shoveling coal into the Titanic's boilers.

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  58. At my law school, the Student Affairs Dean served as the de facto counseler and his approached appeared simply to be, "Do no harm".

    Although, in my experience, the vibe I also got from him was that there was no need to panic.

    Would that were true.

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  59. what happened to jd underground?

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  60. Rule 1: do not panic.

    Rule 2: be the first to panic.

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  61. Ive personally never cared much for jd underground, or any of the toilet blogs, and I'm somebody squarely in their target audience. Conversations like the kind this blog has encouraged (in a very short window of time) are what we need to have more of.

    A little action would be nice, though; although, I imagine we're still in for another stretch of clucking, self-referential pearl-clutching from those within the academy before more professors start addressing this issue publicly and candidly.

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  62. I "attempted" to take a clinic during my third year at the fourth tier toiled I graduated from this past May. I got an email five (5) days prior to the start of the semester telling me the clinic had been cancelled. No fault on the part of the school, of course. (This was, of course, untrue.) I had gone through an interview process and jumped through a lot of hoops for that clinic placement. I asked to be placed in another of the clinics offered that semester, and was denied. I asked for priority placement in one of the next semesters clinics, and was denied. So, no clinic for me. That as my shot. True story.

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  63. Crux of law, Did you get to take the "Neitzchian underpinnings of the Supreme Court's term in the 1960s" seminar?

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  64. Anon - Even better, I took "sports law."

    Which, honestly, was a brutally tough course taught by an young, hotshot adjunct. There were nine students, including myself, and he curved it. There was a lot of reading, and you were expected to know the cases. It actually taught me a lot as it served as a review and application of Torts, Contracts, Con law, etc. But, still, I was lucky to find anything 5 days prior to the state of the semester. Still pisses me off.

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  65. Well, I assume with that hard earned knowledge and your JD you got a job representing major league athletes. Glad it worked out for you.

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  66. Point taken. Conclusion: It didn't work out so good for me. I was trying to make lemonade out of a lemon.

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  67. This also eviscerates another argument put forth by professors, namely that they spend copious amounts of time preparing for courses and this somehow renders law school a non-scam.

    Who cares? Professors are spending copious amounts of time teaching students information that students will never use, and that nobody else cares about.

    Just because a chef spends 50 hours making a nuanced and intricate mud pie, still doesn't change the fact that virtually nobody can use a mud pie.

    So professors who spend hours upon hours researching and re-reading theories on Nietzsche in preparation for teaching a class are completely wasting their own time, and their students time.

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  68. "Just because a chef spends 50 hours making a nuanced and intricate mud pie, still doesn't change the fact that virtually nobody can use a mud pie."

    Exactly. Even believing their claims that they work so hard (a claim that is entirely in their self interest to make) it has nothing to do with anything.

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  69. I imagine we're still in for another stretch of clucking, self-referential pearl-clutching from those within the academy before more professors start addressing this issue publicly and candidly.

    I don't think more than a miniscule number of professors will ever address the issue publicly and candidly. To do so goes completely against their interests -- it would be like expecting McDonald's franchisees to publicly state that their food is overpriced and tastes lousy. It's just not going to happen.

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  70. @12:28,

    I think the issue is even more pathological than that: I think the vast majority of law school professors are experientially divorced from the reality of what it means to lose at law school and are therefore ill-equipped to engage with it in any meaningful way. Obviously, this is true of most fields. But when law school has become a losing proposition for most students who attend it, the reality of widespread substantive failure begins to cast doubt on both the efficacy *and* usefulness of a legal education.

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  71. I do think trial advocacy classes have tremendous value, partially because they are mostly taught (at least at my school) by non-tenure-track faculty brought in from the practicing trial bar. While it's true that a simulation does not equal reality, the same could be said of aviation. Would you prefer your pilot do a few simulations before taking a real a airplane off the ground? I know I would. And while lawyers don't literally have people's lives in their hands (except in death penalty cases), it still makes sense that people should get a few dry runs in before real client's money/career/freeddom is riding in the balance.

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  72. My research/writing prof was tenured, a former Dean of the school, with 40 years of teaching by the time I got to him. He was easily the most high-status person at the school, by far. Every administrator had to kiss his ring. He owned.

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  73. My LRW prof was a failed lawyer who wound up going back to school for Library Studies. Everyone kissed his ring too, but not because he was that high status.

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  74. @Anon 1:03pm

    Sounds like your LRW prof was actually smarter than most of the failed lawyers out there.

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  75. I think the justification most professors would use (and I dont know if this is justifiable or not) is that there is no time for extra exams. During law school, I think I only had maybe 1 or 2 classes where we made it through the entire syllabus and we were learning new things up until the last class where the Professor may have had an hour for "review" and to take questions. In all other classes, the professors constantly had to amend/shorten the syllabus. Final Exams usually are given after classes are over in a designated time.

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  76. @1:23,

    Possibly, but that don't mean he knew thing one about legal writing.

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  77. 1:25, that's a very good point, although one that is easily remediable by adding a few hours to each class semester.

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  78. Are there any English law students here? I heard that in England, exams are not even graded by your professor. They are sent to some central repository and blind graded by someone who has never met you, similar to the way the bar exam is graded.

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  79. @1:25:

    Are law school courses too condensed? Are they trying to cover too much territory too quickly?

    At many law school, Civ Pro is a two semester course, same with Con Law. But what about Property? (another jurisprudentially volumnious course).

    Does the question of whether 2L and 3L are any use elide over the fact that perhaps too much information is expected to be covered in 1L?

    Imagine the following:

    A law school curriculum that is more spaced out and comprehensive with more room for feedback and more opportunities for improvement? Civ Pro and Con Law are already two semester courses at many law schools. Why not build on this and expand it to include two semester versions of other foundational courses like Contracts and Property? Second Year, focus can shift to the (for lack of a better term) Negligence-themed areas of law Torts, Crim Law, and Professional Responsbility (which I emphatically do not believe needs to be a year long course) and maybe an elective. While 3L can be focused on clinics and externships and coursework in related areas of study (Evidence, Reg Law, Patent, Civil Practice, etc.)

    What this amounts to is a gutting of the number of disciplines covered in law school, which is why it will never come to pass. But it is a far more intuitive system of instruction than the firehose of information and frontloading of 1L grades that define the current model.

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  80. I realize, also, that there's a huge gaping hole where Trusts & Estates, CrimPro, Sale of Goods, and Corporations should be, but I would welcome any other suggestions.

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  81. . . . and Patent/C&T.

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  82. 1:25 here again. At my school, most of our 1st year classes were only 1 semester. Our 1L contracts focused on common law. If you wanted to learn Article II, Sales and Secured Transactions were offered as electives. I didnt take either one but found learning it from Bar bri was enough. Our con law class is a required first year course, but it did not really focus on and Bill of Rights issues. Again, to gain this information, one could take focused elective courses on the issue. Lastly, civ. pro was also one semester where we focused on the federal rule. The school offers a state civ. pro elective course. There definitely was not sufficient time to cover all the material in that class over one semester. I think we got to the eerie doctrine in our last week. However, my professor also assigned a "litigation exercise"group project where we had to take a case all the way from complaint through motion to dismiss/summary judgment. Our professor would hold motion hearings at the start of class so I think that would account for some of the lost time. Nonetheless, even though I did not know it then, this was the most important 1L class I had due to this "litigation exercise". I think the professor ended up scrapping it though, due to the amount of time it took up during class, for him (Our professor would respond to our interrogatories as the client, created depos, and serve as Judge) and for us. Yet, it was valuble because we actually had to compose complaints, answers, etc.---you know, prepare us to do actual lawyer work.

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  83. Are law school courses too condensed? Are they trying to cover too much territory too quickly?

    I'm actually inclined to the view that they're not condensed enough. If professors simply lectured instead of questioning students and using class discussion to draw out the points they want to make, they could cover a lot more material. Bar review courses cover a ton of material in eight weeks.

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  84. Interesting point, 2:02

    Which raises another issue: why is it so widely accepted that bar review comprises the essence of one's sustantive legal education? On what grounds should this system be defended? And, while expensive, bar review pales in comparison to the cost of law school tuition. So, again, what is there about the status quo of legal pedagogy that is even objectively worth defending?

    And what exactly is the cogent, academic rationale against teaching black letter law?

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  85. And I also get the sense that Bob Feinberg makes a sh*t ton more money than your typical law school prof.

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  86. 2:02 here. I think the main rationale* is that law school teaches students how to teach themselves the law, since the law is constantly changing, and since people will go on to practice in areas that their classes will not have covered.

    But you don't need 6+ courses to learn that. As LawProf pointed out a few days ago, it could be taught in one semester, in one course.

    *An unspoken rationale, IMO, is that it makes Law seem more intellectually challenging than it really is.

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  87. ...and ten years from now not thing will change. You can quote me.

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  88. This blog is now pointless.

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  89. Another issue raised by the comments worthy of LawProf's thoughts is the use [abuse?] of adjuncts. This is, from what I've seen, an amazingly exploitative practice. I know someone who was a adjunct "legal writing" instructor at a Top 30 school who was paid $4000 per course. She often taught two courses a semester. One for for 1L and one for on civil pleadings for 2L + 3L. The multiple assignments and student conferences meant that she put in about a 150 hours per semester outside of class, which, combined with class time, meant that her compensation was approaching $20 a hour. In the semesters she taught two courses, she was in essence doing a full prof's caseload for a mere $8 grand and no benefits.

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  90. "One point that the Professor (or a blog sympathetic to his take) may have alluded to earlier is also that law school pedagogy is pretty much designed to maximize the number of people who don't reach into that vaunted Top 25%."

    I was reading the comments section and I happened on this brilliant insight. Maybe if the law school pedagogy wasn't designed in such an insidious way, only 50% of law school students would fail to reach the top 25%. What percentage of law students would you propose make it into the top 25%? (Maybe I'm not being fair and there's a non-nonsensical reading of this comment; is the idea that in a fairer system people would take turns at having top grades, so that after three years of law school as much as 75% enjoyed some time in the top 25%? I suppose if grades were assigned randomly that could work. Sounds fair to me.) The truth is that a lot of not very bright people, like the fellow who wrote this comment, apply to law school because as a child they always liked to argue, or because they enjoy a law-related TV show, or because they have a rich lawyer uncle, or saw an actor playing a rich lawyer on TV. Then they take the LSAT, and instead of viewing it as a metric, highly imperfect to be sure, of one's ability to make sense out of the law - which, like the LSAT, is replete with uninteresting and non-profound but rather logically baroque problems - they seem to see it as an arbitrarily placed barrier on their road to riches/prosecuting nonexistent New York mob bosses. So, either they don't do very well, or they artificially pump their score up with obsessive study and LSAT tricks, and they end up in law school, where they don't do so well because they lack the aptitude for it. Then they think they deserve to get jobs anyway, that firms should see past their grades to . . . that they're nice people. Why - so they can be bad lawyers? Not only is this stupid, it's socially irresponsible. Bad lawyering harms lives, costs people their property, lands people in jail. Go to any appellate court in the country, or sift through some filings in habeas cases on Westlaw; you will see lawyers idiotically concede arguments away that could have saved their clients decades in prison, as they press other arguments that lack a scintilla of merit, or blather meaninglessly about meaningless facts. Not because they're bad people, or lazy people, or even entirely stupid people, but because they lack the skills to be good lawyers. I've seen this many times, and I know a lot of my classmates would make similar mistakes. I don't particularly want them to be lawyers. And I don't think that a lot of clinics would magically teach someone with crap for analytic ability how to know when a valid procedural default is staring them in the face and they need to switch tacks and start looking for ineffective assistance of counsel to excuse the procedural default. (Nor do I think that the kind of small-town lawyers who end up taking on habeas cases foresee, in law school, that they will one day take on habeas cases.)

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  91. "...and ten years from now not thing will change. You can quote me."

    I disagree. Something has to change. Law schools can't keep raising tuition as they are doing now (in ten years a year's tuition would be over $75,000) and they can't keep graduating two or three times as many students as there are jobs (and saddling these jobless students with a fortune in debt). Something has to change. What that is I don't know, but I can spot a bubble of thieving opportunism when I see it.

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  92. "So the end result was that people that didn't worry about getting a job on graduation, the top 15% of the class, were getting into clinics. Unfortunately, those in the lower half who will most likely go straight to hanging out a shingle got shit practical experience."

    Sweet Jesus, FINALLY someone else who went through this. I never understood the logic behind that.

    Here's my story: I didn't go directly to law school after undergrad but started my career and then decided to return back to school. I actually had prior experience in the clinic that I applied to; it was a securities arbitration / dispute resolution clinic, and prior to entering law school I had spent years working at FINRA. Great match right? I figured, even with my grades (which were roughly middle of the pack), at the least, I could be an asset to them, seeing as how most kids in that clinic knew squat about securities or the arbitration process. Even the career counselors (a worthless group of people that LawProf should tackle on another topic) thought it was a slam-dunk.

    You can probably guess what happened: interview (in which I got the impression that she would rather be watching paint dry on the wall than talk to me), follow-up e-mail thanking her for the interview, then nothing. For weeks, I didn't hear ANYTHING from her. Then a few days before the clinic was supposed to start I e-mailed her just as a reminder that I hadn't heard anything; her response was a curt 2 line reply telling me that all the positions had been filled. Honestly, she didn't even include a "sorry for taking so long to get back to you" or even a "thank you for interviewing with us".

    But the salt in the wound was the fact that I personally knew a few of the people that had been selected, all of whom had no knowledge or interest in securities or arbitration. The gem of the group was the one guy who, when I questioned him about it, came right out and said "Oh hell no, I don't care about the clinic; I just want to have it on my résumé".

    I shouldn't feel too bad, since I re-entered the field and despite not being a practicing attorney I'm actually in a MUCH better financial position than a lot of my classmates, who spend their days sitting at home, sending out dozens of résumés, worrying about CLE courses all while attempting to defer their loan payments.

    Such is life I suppose.

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  93. I don't see any need to change the model to focus more on practical skills. As others have said, that won't affect the demand problem and ultimately won't lead to any better employment prospects for the bottom half of graduates. Plus, lawprof is right that even if schools did attempt to train people in real skills, the training would pale in comparison to training received at an actual job.

    To a large extent, law school is just a sorting mechanism. It ranks all would-be lawyers by aptitude (roughly) and employers use that ranking to choose the people they want to train to become lawyers.

    Its not a bad idea. It just costs too much. And invites too many students.

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  94. Not because they're bad people, or lazy people, or even entirely stupid people, but because they lack the skills to be good lawyers.

    Then law schools should stop taking their money (espcially after the 1L year).

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  95. I’ve been a physician for 35 years, 20 of those as a medical school professor, so I find the comparisons with medical education interesting. As several people have commented, medical school’s traditional teaching model -- 2 years of preclinical courses followed by 2 years of practical work -- at least prepares students to function as junior, supervised physicians, or residents. Residency follows medical school (3-5 years, depending upon specialty choice) after which physicians are ready to be let loose on the public. Why doesn’t legal education do that sort of thing? I assume the answer is that there is no demand for it.

    Unlike what I am learning at this excellent blog about the legal system, in medicine there is a real demand for residents: medical centers and hospitals need them because they are the low-priced labor the system runs on. So the arrangement gives one side cheap labor; the other side gets practical training. We have our own huge, chronic problems in how we train doctors, but at least there is that mutual dependence.

    The more interesting part to me is what I am learning from all you about legal supply and demand, that there is a huge oversupply of lawyers with an apparently fixed demand for legal services. The odd thing about medicine is that the equation is reversed: a large amount of healthcare research has shown that, in medicine, supply drives demand. All those docs in the system create a demand for their services. There are several perverse reasons for that, mainly a willingness to pay for it all in a fee-for-service environment. (This needs to be fixed before it bankrupts our economy.) It is interesting to me that such a thing doesn’t happen in the law. Or does it, at least to some extent?

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