Friday, December 13, 2013

Making Genuinely Practice-Ready Law Graduates

One of the hottest trends among law schools frantically trying to fix the jalopy of legal education is "experiential learning" or creating "practice-ready" graduates.  Practically every week in my news feed on this topic, I see some article about yet another law school parading these buzz phrases as they add some bell or whistle.

Like installing a car horn that plays La Cucaracha.

Here's a typical article on this nonsense:
"In the past, experiential learning was almost optional," says Diane Rifkin, an attorney and founder of Rifkin Consulting, an attorney recruitment firm located on the web at www.rifkinconsulting.com . "Now, experiential activities will be an integral part of the majority of law school classes. Classes are becoming much more hands-on, with the ultimate goal of producing lawyers who are better prepared to handle the realities of practice."
For one example, this is from Capital's page on the subject:
At Capital University Law School, we know that getting real-world experiences is critical to getting the most out of your legal education and differentiating yourself in the job market. Experiential learning opportunities help students take their classroom theory and apply it to the real world – teaching you how to work like a lawyer.
Emphasis added.  As a koan for the reader on the road to enlightenment, try to figure out how students are going to differentiate themselves on the job market when virtually every law school in the country offers the same puffed-up claims.

This isn't to say there's a lack of good intent, or that law students don't need real-world experience.

It's that law schools simply aren't built to provide it.


They can't produce truly practice-ready law graduates any more than reading a bunch of books on theoretical baseball can make you ready to play shortstop or a high school shop class means you can start building shit that actually matters.

To understand what I mean, we need to look at the essence of law schools, to intentionally hack concepts from Plato.  What makes a law school a law school?

To start, let's look at the words of Blackstone, an Abrahamic figure in legal academia.  Here's what Blackstone had to say on apprenticeships and legal education:
Making therefore due allowance for one or two shining exceptions, experience may teach us to foretell that a lawyer thus educated to the bar, in subservience to attorneys and solicitors, will find he has begun at the wrong end. If practice be the whole he is taught, practice must also be the whole he will ever know: if he be uninstructed in the elements and first principles upon which the rule of practice is founded, the least variation from established precedents will totally distract and bewilder him: ita lex scripta est is the utmost his knowlege will arrive at; he must never aspire to form, and seldom expect to comprehend, any arguments drawn a priori, from the spirit of the laws and the natural foundations of justice. 
Nor is this all; for (as few persons of birth, or fortune, or even of scholastic education, will submit to the drudgery of servitude and the manual labour of copying the trash of an office) should this infatuation prevail to any considerable degree, we must rarely expect to see a gentleman of distinction or learning at the bar. And what the consequence may be, to have the interpretation and enforcement of the laws (which include the entire disposal of our properties, liberties, and lives) fall wholly into the hands of obscure or illiterate men, is matter of very public concern.
Commentaries on the Law of England, somewhere deep in chapter one (Footnotes omitted).  I think I have to wash myself after reading that.  I double-dog dare you to try reading the entire first chapter of the Commentaries, which runs over 13,000 words while making an argument that could be handled in much less, thus setting the eternal gold standard for law reviews everywhere.

Here in America, the apprenticeship model for teaching lawyers was prominent throughout the 19th century and into the early 20th century, stopped by the reforming academic hands of men like Dean Christopher Langdell, Saint Paul to Blackstone's Abraham, who believed that case law was a natural science most properly taught in the university setting and by reading case law one could reach and understand that "spirit of the laws" that underlies our jurisprudence.

I'm not about to claim that the apprenticeship model was "better" or even worked "effectively."  For one thing, 19th century law was a mess in need of centralized codification, which is why James Kent is a key figure in the pre-law school age and Holmes's writings actually had relevance and resonance.  Legal scholarship actually had a valuable and essential function, at least until the 2nd Restatement.

And, as in other areas, the 19th and early 20th centuries were plagued with hucksters, exploiters, and well-dressed scofflaws.  Regulation was weak, and there was no way of guaranteeing that apprentices would receive any sort of standard training.  Until bar associations got serious about excluding the riff-raff (which curiously enough may have been when women and minorities started applying), legal training was a wild-card.

So law schools, at least when they "modernized" to the Langdell model, fulfilled a valuable purpose.  They centralized legal education (giving employers a standard training expectation in an era where law blossomed in the wake of the industrial revolution), assisted in codifying and developing the law, and, as an added bonus, endowed lawyers with enough theory to give law schools the sense of elitism that oozes through Blackstone's prose.

Still, the apprenticeship model has some merit in that it actually, like, taught people how to practice the minutiae that makes up most law practice.  The modern vehicle of legal education did not arise out of a desire to teach day-to-day lawyers how to practice as much as it was designed to subsume the professional training in the elitist university setting and academize it.

It's a subtle difference, but it's an essential one.

If the law school's primary function were to teach practical law instead of academizing the study of law, law schools would look radically different, if exist at all.  That's largely because the world has changed dramatically since Langdell's long-bearded gilded days.

Law today is, for the most part, standardized.  Restatements and other legal resources make researching black-letter law and major case citations relatively easy.  The common law has been effectively abrogated in most areas and places, replaced with the UCC, extensive criminal codes, and formalized procedural and evidence rules.  Law reviews have moved from reviewing legitimate legal questions to self-aggrandizing fluff that would likely even make Blackstone snicker.

Regulation is now expansive and active.  The ABA and state bar associations have (or, I suppose, can) set standards to protect the public, both prospective lawyers seeking education and consumers of legal services.  And rigorous bar examinations (again, can) ensure that members of the bar know at least the substantive elements of the law and have some modicum of legal education.

Law schools, however, have never changed.  I don't mean adding clinical courses or externships, which are duct tape on a flat tire.  I mean rebuilding the whole fucking thing to be geared towards actually teaching practicing attorneys.

We learned a long time ago - or should have learned, anyway - that law is not a natural science with some sort of teleological process at work premised on natural, universal principles that can be divined by sitting in a library.  Long ago, the most useful legal scholarship shifted away from academia and - surprise - now comes from short articles in bar journals written by people who actually practice and "live the law" on a daily basis.

And that's, of course, the biggest structural problem with law schools.  The faculties are still composed, often, of people with limited or weak practice experience.  Hiring patterns still prefer scholars bred for academia instead of seasoned professionals to train future professionals.  A Harvard graduate who spent a year with Justice Kennedy and did busywork for a V-whatever is still a stronger faculty candidate than a 20-year public defender, personal injury attorney, or generic government attorney.

Granted, clinical and adjunct professors are often more experienced, but they're also often viewed as second-class professors and present ABA regulations protect the status quo in this regard.  Despite law schools' claims to focus on experiential learning, the main thrust of a law school is still classroom instruction by a "credentialed" person who likely has little in the way of practical experience.  This is particularly true of core classes, which seem to often be dumping grounds for the most credentialed-but-worthless of law faculty members.

Furthermore, many clinical experiences and externships are either narrowly-focused or of limited use.  The academic calender will often limit these experience in time such that a student never sees a full case develop from start to resolution.  Meanwhile, clinics and externships are often a crap-shoot in terms of imparting broad legal skills; some are amazing, others make you a litigation assistant.  And in a truly bizarre move, ABA regulations ostensibly limit how much practical experience a student can have.

But the biggest offense of the present system - by far - remains that the people who run it are academians first.  Many don't even have bar cards.  Far too many (>1) have never worked with a client directly, much less figure out how to file a proper appellate record, defend a deposition, move to exclude damaging criminal evidence, or confront an intelligent adversary who's being an asshat.

Much of the apathy to actual practice experience, I suspect, arises from an unwarranted sense of elitism, that real-life law practice is easy and that the higher intellects of academia would thrive in it - either as BigLaw partners or successful small law trial attorneys - but for their decision to profess full-time.  Intro to torts or criminal law doesn't require a practitioner.  It's simple stuff.

It should go without saying that this is misguided bullshit.  Law is not rocket science, but it's a nuanced art form that takes time to fully understand and feel comfortable practicing.  There are tons of idiots who are successful attorneys because they've been around enough to understand the how the game works.  There are bright people who have been around for years who don't know much of anything because, for better or worse, they wound up insulated from learning anything of useful value.  Although the academians may not grasp this, there are things you pick up practicing law that you simply cannot learn in a classroom setting, including in clinical instruction.  And in many cases, the academic, theory-first approach to law is directly contrary to what is actually needed in practicing attorneys.  See, for example, much of what passes for legal writing and skills classes.

Sadly, many of these lessons are not fully understood until you actually go out and try practicing which, again, many of the people running law schools have never seriously done.

If we're really serious about creating legitimate, practice-ready attorneys, we need to do the following:
  1. Make legal theory an undergraduate major and/or master's degree subject to satiate any need for law to be a formalized study.
  2. Lobby state accrediting bodies to give a provisional license to anyone who can pass the bar examination after majoring in legal theory or taking equivalent coursework.
  3. Transform existing law schools into non-profit residency programs where students spend three years working on cases in a mid-sized law firm devoted to serving the public interest across a variety of fields.  Slash enrollment levels and charge enough tuition to break even after grants and donations are exhausted.  
I'm not professorial enough to believe this is the only solution, but it seems to have far more merit than the current legal education system.  Just as the Langdell model filled a void in the late 19th/early 20th century, converting to an undergraduate/certification-and-residency system would address a number of issues now facing legal education.

For one, it preserves the Blackstone concern of lawyers lacking theoretical foundation and being incapable of thinking in grander terms; no matter how strained this contention, few doubt that adequate theory can be taught at the undergraduate level.  They more or less do this in England, and undergraduate training in theory is adequate in a number of other fields benefiting from theoretical background.  What, after all, are political science or philosophy majors?  The theoreticians on law faculties can go preach to undergraduates, who may find that - with a "law" undergraduate" - they are suddenly more employable that either a political science major or a Juris Doctor holder.  (If you were in charge of a compliance department, who of the three would be the safest hire?)

Two, it preserves the bar as a gate-keeping function for minimal intellectual competency while requiring actual practice competency before clients can be individually represented, as it appears that the mentorship/partnership track system of 20+ years ago is dead and not in line for revival.

Three, by turning law schools into residency practices, it ensures that actual lawyers are running legal education, and that the education can be changed as the market reality of law practice changes.

Fourth, as suggested above, it drastically improves the worst case scenario for law students.  If law were an undergraduate major instead of a seven-year professional investment, non-legal employers would likely be much more likely to hire graduates who couldn't find a residency slot, as many of the inhibitors of hiring law graduates would be removed.  And for graduates who get into residency programs but cannot find work, they at least have three years of experience and have some idea of what they're doing.

This last point is key.  The biggest problem with the lack of jobs - which experiential learning does zilch to fix - is that the alternatives are thoroughly inadequate for the massive investment in time and cost.

As I said, I'm not arrogant enough to believe this is the only solution, but I do know this:  that the current law school system is not built to impart meaningful practice experience.  As long as legal education remains captive within the academic environment and mindset, it will be overtaken by academic ideals and practices which are inherently contrary to providing good practice experience.

To paraphrase Blackstone, if academia be the whole they operate, academia must also be the whole they will ever impart.  Instead of "deans" and "professors," our future lawyers need to learn under "lawyers."  Instead of "Socratic method," our future lawyers need to learn in "law practice."  Instead of "Pennoyer," our future lawyers need to learn "how personal jurisdiction applies in a nearby courthouse."

Expanded experiential education is a step in the right direction, but there's much too far to go to make the journey walking.  We need to scrap the old rusty wagon and build a new vehicle designed for addressing road conditions today.

29 comments:

  1. They can make law school 5 years long, as long as it's cheaper. Any curricular reform must be accompanied by cost cuts - and that won't happen until student loan reform occurs.

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  2. This idea is a start. Its a battle to get other ideas on the table to get to change. The profession needs to be saved. And no future lawyers should pay 150k to 200k to be a lawyer.

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    1. The profession does need to be saved, but all the ranting here isn't doing anything, it's just preaching to the choir.

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    2. The current model is sustainable indefinitely. All the law schools need is around 40k special snowflake lemmings per year. There is no impetus to change.

      But this all depends on the government's willingness to extend practically unlimited Grad Plus loans to anyone who can sign their names. If the government puts serious limits on federal loan money, then the whole rotten industry will be in real trouble and we will then see some serious reform.

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  3. They've got it backwards.

    The practice needs to be Graduate Ready.

    For several years, and for the foreseeable future, it's not. There are thousands of practice hardened lawyers looking for work.

    Law students: the profession ain't ready for you.

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  4. Brilliant post. I totally agree with your proposed residency model. I like to quote Veblen: "Law schools belong in the modern university no more than a school of fencing or dancing," Every practicing lawyer knows that it is a learn-by-doing profession. Learning core doctrine across the gamut of practice fields ought to take nine weeks, not three years, as bar review courses have proven. Later on, practitioners can brush up their knowledge with readily available online CLEs and their skills with things like intensive two-week trial ad programs.

    Want lawyers to be broadly educated? As an additional precondition of admission to a residency program, make aspiring lawyers do a year or more of graduate school in history, philosophy, polisci, or literature, studying under genuine scholars rather than law professor dilettantes. Make them produce their very own Law and __ paper, rather than having them pay a lawprof a king's ransom to do it.

    Want legal scholarship? How about foundations to pay lawyers of a scholarly bent to take one to two year leaves of absences from their jobs to write articles? Or provide research grants to the genuine scholars doing legal history and such over on the undergrad campus?

    It may be that U.S. law schools circa 2013 have no function other than a scam function. Ecrasez l'infame.

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    1. There is no more telling indictment of the current model used by law schools than this:

      "Learning core doctrine across the gamut of practice fields ought to and does take nine weeks, not three years, as bar review courses have proven."

      Words in bold added

      Just about everyone will say they learned more in their bar review course about the law than they did in 3 years of hide the ball, move the goal line, etc.

      Why law schools in the 19th century moved from teaching law using treatises to reading cases remains a mystery to me. Perhaps it was simply to give law professors a chance to display their egos and bully students. But whatever the reason, it makes no sense.

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  5. But wait.

    If there are already many experienced lawyers who are un- or under-employed, why would a new lawyer who may be ready to begin a practice stand a snowball's chance in hell?

    The law schools have long known that their Langdellian cirriculum is outdated and of little practical use in imparting substantive law. At best, it's been a right of passage for those wishing to enter the profession, and a little bit of a school to learn the lexicon and phraseology of law. It's a horribly inefficient learning method, yet one steeped in history, very popular in the public imagination (e.g., Paper Chase), and one which becomes an icon for the profession. Kind of like a grand duke in a small European principality: he reigns but doesn't rule but is a high profile figurehead.

    Now in a crisis of epic proportions, the law schools have decided to turn on their history. Of course, law school was always somewhat a symbolic entryway to the law. The real training occurs on the job.

    So by all means, dump real property, scotch the quasi-socratic intimidation, and abandon the intense focus on judicial opinions that were already antiques three decades ago. Substitute whatever teaching methodology you wish. Bring in practitioners and judges and handle and then try cases right in the schools.

    You make the students more ready to do what?

    You see, there's gotta be a practice to go to in order for 'practice-ready' to work.

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    1. I think inherent in any residency model would be that you can't have places like Cooley or Coastal. The volume simply wouldn't work, so you would have a necessary reduction in law graduates, meaning there may actually be practice opportunities in the future.

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  6. What's this new-found passion for reforming law school?

    Law School's been unchanged and impervious to change for at least the past half century. If legal education was somehow hindering or hampering the legal profession, it would have been changed long ago. Pennoyer v. Neff was a stylistic antique even back in 1985, and yet no one was clamoring for a sea change then.

    Today, we can build buggy whips with handles fashioned from ultra-light, ultra-strong carbon fiber, and make the lashes from long-lasting synthetic materials. A truly great buggy whip.

    But it's not gonna create a demand for more buggy whips.

    It's called a market economy.

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    Replies
    1. There is no market economy as applied to law schools.

      Why do people claim this nonsense? Are you paying attention?

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  7. After my second summer during law school was spent as an intern in the D.A.'s office, I knew that I wanted to be a prosecutor. I came back to school and took as many classes as I could find that would help me to be ready for practice: Advanced Evidence, Trial Advocacy, took another externship through the clinic in the spring of 3L, etc. Nearly all of these classes were taught by adjuncts or clinic faculty, and I was the better for it. It's one of the reasons I actually look back more fondly on my law school experience than many others and didn't find it completely useless.

    If I were constructing the model from scratch within the three year framework, I would leave first year as is, make my third year experience (practice-geared classes taught by adjuncts and clinical faculty--along with one or two electives in something the student might be interested in) the standard second year experience, and the third year would be the student, matched up with someone in practice, basically working an extended externship (or two) for either the last year or the last semester of the third year.

    This would produce a better lawyer, and at a much lower price, as your current amount of tenured faculty could be cut at least in half, replaced by adjuncts and clinical faculty.

    The elite schools could still charge whatever they wanted to charge and would be the sponsors of legal theory and scholarship. Harvard and Yale can afford it. Other schools need to train lawyers and have some idea where they are going to fit post-graduation. That way, if you're coming up with 50 students every year that don't have a clinical placement (and also don't have job lined up with a law firm), then that school knows it needs to decrease its entering class by 40 to 50 people.

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    1. With all due respect to your suggestion, who are you going to pair these young students up with? The over saturated market has made it impossible for experienced lawyers to retire, much less train their competition. This would have worked 20 years ago, but now? Not so much.

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    2. Agree tdennis239,
      In my practice area of patent law, my colleagues and I are basically waiting for the old farts to retire. They are in their late 50s and early 60s and none of them show (a) any sign of wanting to retire and (b) any desire to help out the next generation of practitioners. I've basically had to hustle and figure it out all by myself , and that's not the way I was told its supposed to be.

      Basically these guys are coasting on inflated salaries and bleeding my company dry. By the time I get to be their age, they will long have sucked the teat dry and left nothing for the rest of us.
      Yet another reason I hate boomers.

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  8. Close all the Toilets now!

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  9. This morning, my law school—reputed to be one of the best—sent out a bit of propaganda gloating about the large number of students who become clerks.

    I wonder how many of my fellow clerks, to say nothing of the students in general, could even define personal jurisdiction, or indeed have heard the term before.

    Law school fails to teach even basic concepts, let alone Theory™ and Thinking Like a Lawyer®.

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  10. we had a couple of people in our class who were "practice" ready because they'd been paralegals and worker bees prior to law school. Didn't help them. Students who got interviews were law review. As long as the law school experience is obsessed with Law Review Editor status, nothing will change. (Law School Alumni office, though, is obsessed with "who" your family is... i.e. wealthy families)

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    1. I edited the law review. Didn't do me a damn bit of good. I got a federal clerkship, but no law firm would give me the time of day. Mind you, scads of rich ninnies near the bottom of the class did get jobs.

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  11. I remember my orientation in law school. Some blowhard dean asked all the students to look to their left and their right and said "one of those people will not graduate". That was complete bullshit, the vast majority graduated and passed the bar. But only 1/2 get jobs (1/2 of those people won't have legal jobs five years out), and almost all will be in debt the rest of their adult lives. That has to be stressed throughout law school, it is unethical for anyone associated with legal education to say otherwise.

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  12. At my rotten Toilets orientation even the student id photographer was rude and condescending. Those years are gone forever and my life may never recover. but ill never stop trying to expose those thieves and elixir peddlers

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  13. Has everyone seen this?

    http://www.businessinsider.com/is-law-school-worth-the-money-2013-12

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    Replies
    1. No. There are some people who haven't.

      Delete
  14. You need to practice law for several years to be "practice ready". Three years in law school is not going to make anyone "practice ready".

    Second, some genius finally figured out that the half a million licensed lawyers in the U.S. with little or no income, and the 180,000 others earning under $55,000 a year cannot afford to retire early - they need to keep working till they drop to pay the bills.

    What a surprise - law is supposed to be a career where anyone who is bright and personable can say "I can make it work".

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  15. Lord knows, most law schools have long needed to be reformed, and made more relevant to the actual practice of the type of law that is practiced by 90% of the bar. The vast majority of law schools have basically taken their cue from the national flagship schools and followed the time-honored (almost fabled) cirriculum, and have taken things from there.

    It's not a terribly efficient way to train lawyers for present-day practice, but it's a form of universal (more or less) boot camp for lawyerdom.

    It's an easy target. A real easy target. And, yes, it should change.

    But that's not what's got the schools in trouble. And it won't change the problem.

    Imagine a nation that has limited natural resources, few paved roads, no railways, and antiquated manufacturing facilties. Basic education is hit-and-miss, and the birth rate is skyrocketing. It's closest neighbor is hostile.. and militaristic. Perhaps expansionist.

    A new regime comes to power and --recognizing that the nation's seldom-sung national anthem is a ditty from the early 20th century that is written in an un-singable minor key and makes some odd references to classical mythology -- needs to be changed at once. The entire country is asked to participate in the Great Anthem Debate.

    It's that jobs thing.

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  16. My reply to this article: http://aroundthelawschoolscam.blogspot.com/2013/12/on-law-schools-making-practice-ready.html

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    Replies
    1. Practice Ready is merely a ploy to improve the marketability of law schools.

      "..... we know that getting real-world experiences is critical to getting the most out of your legal education and differentiating yourself in the job market."

      The job market?

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    2. To 5:29. Yes, and they are giving the public what the public demands. If the public demands "practice-ready," you can bet they are going to offer it. That's the way markets roll. My only beef is the public is not enlightened enough to understand that focusing on "practice-readiness" would be a continuum along the decline of the profession. You got 3 years to think about how you might deal with say, 400 years of law - give or take. I'd much rather have a sophisticated understanding of the various theories than a snap-shot of procedure which I can find in a cheap $80 book or even free on-line.

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    3. Practice ready, you say?

      Just bend over and spread 'em apart. No lube.

      Here comes the train.

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