Saturday, May 17, 2014

Legal education potluck: judges, lawyers, law schools, law profs, and law reviews

I can’t quite explain my morbid fascination with the state of legal education — well, maybe I could, but it would take too long and require way too much introspection.  In any case, I’ve often blamed law schools for judges’ lack of understanding of basic legal principles.  But that’s not to say that practicing lawyers, on average, know the law any better than the judges.  It’s just that lawyers’ ignorance of the law is not as obvious to me.  For example, when a prosecutor misstates the law, there is no way to know if: (1) he/she really doesn’t understand the law; or (2) he/she is intentionally misstating the law to try to trick the judge — something I’ve suspected, and prosecutors have even gleefully confessed to me, on several occasions.  But regardless, the point remains: the judiciary’s utter indifference to the rule of law is still traceable to the law school industrial complex.  And a recent article by law school prof (and law school-basher) Paul Campos may have identified some root causes within the law schools.

More specifically, Campos presents three statistics that explain (to my satisfaction) why judges and lawyers often don’t know much about the law:

First, of a recent crop of 486 law prof hires, nearly forty percent graduated from only two law schools; nearly ninety percent graduated from only twelve law schools.  In other words: law profs are an incestuous group of individuals that think, act, and teach (or don’t teach) the same.
Second, many new law prof hires have never practiced law.  And of those who have practiced law, their average experience is only 1.4 years.  (The average for all law school profs, of course, would be lower yet.)  On top of that, the government and big law firm employers that account for nearly all of these 1.4 years per person typically shield their low-level employees from all forms of client contact and from any meaningful legal work.
Third, lack of legal experience isn’t even the most serious problem.  “The top twenty-six law school faculties” employ, as law professors, a total of sixty-six individuals who don’t even have a law degree.

Kudos to the student editors at the Harvard Journal of Law & Public Policy who decided to publish this article.  After all, Campos specifically put Harvard squarely in his crosshairs, yet the students published his work anyway.  As a sidebar, this is a great example why law schools shouldn’t turn law review article selection, editing, or any part of the publishing process over to law professors.  Some have advocated for just such a change; others have argued against it.  But based on statistic number two, above, law profs aren’t much more than law students anyway, so what would be the upside?  The downside, of course, is that if law profs ran the law reviews (or even if they just took over article selection), Campos’s article and others like it would never see print. 

In any case, rambling full-circle back to the original problem of the judiciary’s curious indifference to the rule of law, the problem likely won’t correct anytime soon.  Today’s legal education reform movements are typically centered on the cost of law school — a separate problem that is arguably even more pressing.  Additionally, even reform movements that are substantive in nature are necessarily limited: when profs have worked, on average, only 1.4 years, there is only so much they will be able to teach. 

Campos does offer a simple proposal for reform: “a significant portion of a law school’s faculty should have had some sort of real experience with those sectors of the legal profession that the school’s graduates are most likely to enter[.]”  However, this proposal is simply too radical.  Law school hiring committees are comprised of law profs, and those law profs are, typically, elite law school grads with 1.4 years of experience.  (See above.)  It’s just not likely that they’ll turn their backs on their own and start hiring legal practitioners instead. 

So, at least for now and the foreseeable future, law school students and grads will have to continue to look elsewhere (e.g., supervising lawyers, voluntary mentors, voluntary and specialized bar associations, or even self-study initiatives) for their legal training.


  1. Michael
    I will continue to applaud your "morbid fascination with the state of legal education." The scamblogging movement has lost much of its momentum as recent grads could only sustain so much vitriol for only so long. But someone besides Paul Campos et al. has to keep illuminating the issue. Keep up the good work!

    Meantime, as for the longstanding criticism of law schools who keep populating their faculties with inexperienced attorneys, their 'solution' and response to that criticism has long been to exploit often hardpressed members of the practicing bar by hiring them as underpaid, non-tenure track adjunct faculty to teach core classes and run clinical programs. This allows law schools to then truthfully advertise how they offer teachers with 'real experience.'
    - Mo

    1. That's right. They've created two distinct classes of law profs, and it's all premised on this idea that you can separate "theory" from "practice," when in fact the two are intertwined. The other false premise they use is that they (the traditional law profs) are somehow more knowledgeable about the "theory" part by having avoided law practice. It's really bizarre. I'm also really surprised that so many people, including those in the scamblog movement, allow law schools to maintain this false dichotomy.