Strict Scrutiny: Olympia Duhart Says Making Money Has No Place In Law School

The ABA's prohibition on law students working only 20 hours during law school is an antiquated relic. It is a codification of the notion that law school is an intellectual salon where the cutting edge ideas of the day are analyzed by the best and brightest. To sully the focus of law students is a societal catastrophe that must be stopped at all costs. Law school is in fact the closest thing we have to the Kingdom of Laputa from Gulliver's Travels. But, there are certain law professors who cling on to this concept to extend the "good old days" as long as possible.

From time to time, I read something that proves without a doubt that law professors have little to no touch with the current state of the profession. Olympia Duhart has produced such a piece. I could not allow this piece to pass by without comment. As always, her words are in italics, mine are in normal text.

As the American Bar Association considers lifting the ban on paid externships, a simple truth bears repeating: Money changes everything. Under the current standards, law students cannot be compensated for work they do for school credit. This policy should remain in place because separating compensation and “study outside the classroom” is a crucial step toward safeguarding the academic integrity of the externship.

Guarding the "academic integrity" of the externship should be our main focus. Not helping law students defray the ruinous cost of tuition. Ms. Duhart doesn't seem to have an issue with being paid for the work she does. Why doesn't that sully the "academic integrity" of her experience as a law professor?

First, it will limit the ability of government and nonprofit institutions to attract students. Next, it will tempt employers to exploit the students under their supervision. Further, it will impair the educational objectives of the externship. It shifts the externship focus from things that are in the best interest of the students to tasks that are in the best interest of the employer. Driven by a need to maximize profits, some of the employers will engage inexperienced student workers in tasks that have little educational value. For example, inviting a student to reflect on a courtroom observation has an incredibly high instructive value; however, that same experience is not likely to be billable to a client. Profit and pedagogy do not always align.Yes, law students need money. They also need experience. Rolling back the prohibition on allowing students to receive pay and credit for the same work is an “easy fix” that ignores some key realities.

I'm sure that the employer is most concerned with teaching their legal interns about how to file a petition, draft an answer, etc. Employers would never use students in a way that might not be to the maximum benefit to the student, right? Ms. Duhart shows how little experience she has in the actual practice of law. Students don't get into externships to observe things. They are trying to get experience that they can use to succeed in a job. Not everyone can be a law professor and sit around thinking about hip hop's place in the law like andre pond cummings. As I've said before, law professor is the highest paid part time job in America; most of us have to work 40-60 hour weeks dealing with mundane stuff. Duhart wants every aspect of law school to become useless pedagogy.

What's more, revoking the standard also collides with other important objectives for legal education. The A.B.A. has promoted legal education that encourages self-reflection, outcome measures and ethical participation in the practice of law. Even the most conscientious employer – pulled in different directions by clients and practice demands – may not be able to effectively pursue these goals. As they gain new experience, law students need mentors and educators. At the very least, the current standard incentivizes education, not making money.

But the truth is that something has to be done.

I'm sure that the lawyers cranking out hundreds of boilerplate collections petitions a week take a lot of time for self reflection, outcome measures and ethical participation. This type of thinking is why the professoriate and the ABA are entirely out of step with the realities of today's legal profession. The ABA is basically the academic version of the NCAA: an organization with no actual authority that maintains its control because it advances the goals of its most powerful members. 

Given the alarming rate of tuition increases, law schools must finally take responsibility for the rising cost of legal education. A small paycheck will not do much to defray the high debt load most students must absorb to become lawyers. Instead, we need to dig deeper to make law school more affordable for students, especially those students interested in public interest work.

This paragraph might as well be drafted as a model paragraph to be inserted into ludicrous pieces like this one. It allows the author to say, "Look, I know we have a problem." What Ms. Duhart and the majority of the legal academy don't seem to grasp is that change does not happen by holding on even tighter to the status quo. This paragraph just gives us vague generalities about the need to make law school more affordable. Maybe Ms. Duhart and her ilk need to stop focusing on how law students need to think about pie in the sky issues, and actually study how to make law school more affordable. This would eventually lead to people like Ms. Duhart having to make actual sacrifices to their lifestyles. Professors, like everyone else, are looking out for number one. This means they need to continue the cycle of debt slavery so that they can continue living charmed lives.

Allowing students to earn nominal pay from an externship simply is not the answer. They won't earn much money, and they may not gain the type of experience that meaningfully contributes to their legal careers. Shifting the focus from academic study to earning pay will significantly transform the externship experience — and not for the better.

Ms. Duhart, I hope for your sake that you never come down from your ivory tower. Things are falling apart down here.