Is there a crisis in legal
education? Or, alternatively, is there is a "crisis" in legal education?
– note the ostentatious scare quotes meant to express doubt or cynicism as
to the premise. If you are reading an article that places quotation marks
around the phrase "crisis in legal education," then you have received fair warning: read on at your peril because you are about to be blasted
with an academic’s self-serving delusions about how a legal education is invaluable, despite fashionable naysaying.
Case in point: a remarkable law
review article by UC Irvine law Prof. Carrie Menkel-Meadow, entitled "Crisis in Legal Education or Other Things Law Students Should be Learning and Doing,"
45 McGeorge L.Rev. 133 (2013). The very first sentence of Menkel-Meadow’s
article reads: "For the last few years we have been bombarded with news
articles, lawsuits, conferences, and scholarly treatments of the "crisis
in legal education."" Id. So, again, fair warning.
According to her hefty 56-page CV, Prof. Menkel-Meadow has been a law professor for approximately four decades, following her stellar two-year-long career as a practicing lawyer (1975-1977). Menkel-Meadow writes about the challenges of legal education with a clarity
that can only be achieved by a jetsetting legal academic who draws a public sector salary of $330,978 a year [1], but who has not held a job practicing law since the first year of the Carter Administration.
Menkel-Meadow's law review article is a rigorous treatment of the argument that she and UC Irvine School of Law Dean Erwin Chemerinsky made in a co-written New York Times editorial entitled "Don't Skimp on Legal Training" (April 14, 2014), in which the duo asserted that the "crisis mentality" besetting the legal academy is "unfounded" and "do[es] not reflect the contributions legal education makes to achieving justice and well-being for many in the world." The editorial also advocated for innovations such as "new courses to provide students with the expertise to deal with the crucial problems of our time," including "world peace."
Similarly, in her article, Menkel-Meadow asserts that law schools should teach softer, nontraditional skills and values, such as alternate dispute resolution (her speciality), leadership, fairness, creativity, and peace.
So pay careful attention to the
following insights about legal education from Menkel-Meadow’s article, the likes of which never
occur to scambloggers:
Similarly, in her article, Menkel-Meadow asserts that law schools should teach softer, nontraditional skills and values, such as alternate dispute resolution (her speciality), leadership, fairness, creativity, and peace.
1. "It is not that there are too many
lawyers, or too many law school seats, or even that there are not enough jobs,
it is that those who are trained by studying law could study different things
and practice or work with more appropriate knowledge bases and skills sets. . .
. .In this Article, I will suggest that legal education and the work of those
calling themselves lawyers could be and should be more broadly defined if the
goals of the legal profession include solving human problems and producing
peace and justice, as these are "value-added" forms of social goods
produced by having legal knowledge." Carrie Menkel-Meadow, Crisis
in Legal Education or the Other Things Law Students Should Be Learning and
Doing, 45 McGeorge L.Rev. 133, 134 (2013).
2. "In my view,
what modern legal education should prepare students for is a set of values and
skills that are informed by what "legal" values and law offer to deal
with what are essential human needs: • Realization of "justice"
(particularly, but not exclusively, distributive and equity notions of justice)
• General "problem solving" skills (with attention to problem
definition and instrumental and multidisciplinary approaches to solution
generation), including a sensitivity to • Fairness (including both procedural
and substantive concerns); • Peace (and social ordering), including effective
resolution of disputes.• Decision making;• Leadership, facilitation, and
management (of people, groups, and complex information); • Creativity (new
entities, new transactions, and new relationships); • Counseling and
collaboration (with clients, employees, colleagues, and constituents); and •
Governance." Id. at 137.
3. "New forms of
legal work demand new conceptualizations of our field, both as legal educators
(courses, formats for teaching) and as practitioners (opportunities for
internships, new practice formats, tensions between deep specialization and
resiliency, flexibility and change). The organizing concepts and
"tropes" of legal education may have to be broadened to include new
and different borders and boundaries." Id. at 147.
4. "All of
this requires new paradigms of legal thought and training, as well as practice,
but by looking for new solutions to difficult social and legal problems in
these troubled times, there may be opportunities for new sites of legal work
and differently constructed topics for legal education. If architects are
"spatial agents," my colleague Sameer Ashar says lawyers should
conceive of themselves as "relational agents," or as we dispute
resolution theorists like to call ourselves, "social and legal
relationship engineers" or "process architects" (pick your own
favorite comparative professional metaphor!)." Id. at 154. [2]
5. "My students at
UCI have recently developed a new program (now for some academic credit) called
the Global Justice Summit, a multiparty negotiation in which students attempt
to design and draft a new constitution for a variety of new countries and other
entities. The purpose of this exercise is to teach collaboration skills,
drafting, creativity, the development of new "rights" . . .and
recognition of human needs. It is an exercise that produces a positive
"product" rather than a winner and loser in conventional moot court
exercises. Since 2011, we have successfully drafted three distinct
constitutions for both reconciliation and separation of different
"nationalities" from each other, while learning how to create new
entities and to affirmatively consider governance structures by studying the
old and assimilating that into the new. My students hope to expand this program
to other law schools in the coming years. This is an example of
"constructive" legal education..." Id. at 157. [3]
6. "American legal
education might be diversified, sectored, and specialized. Some might study law
to practice, others to train their minds in "legal thought" (logic,
order, inductive and deductive reasoning), others as an overlay on some other
field" (science, economics, business), and others just to become educated
citizens of their countries or the world....some might use law study to change
the way we think about the world by conventionally arguing for new or different
laws. Or, as has been my hope, they reconsider law school as a school for
social, political, economic, and legal problem solving where, in the words of
my "other" law school (Georgetown), "law is the means, justice
is the end." Id. at 159.
7. "[N]ew lawyers
might just adapt, reconfigure, and reconceive the work that lawyers do and see
that there is more that people with legal education can do, not just for
personal gain, but for the global society in which we live. As one who began
her own studies of law to seek justice (and later, peace), we clearly have a
need for students to deal with the remaining distributional injustices and
unnecessary wars in the world. Legal education could do more to teach peace to
law students and the rest of the world." Id.
I hope that readers are inspired
by Menkel-Meadow’s call for legal education to "teach peace to law
students and the rest of the world." Consider how many hundreds of
millions of our fellow humans are right now beset by suffering and deprivation
caused by "the remaining distributional injustices and unnecessary wars in the world." To think that this suffering that could be resolved if only we had a sufficient number of law grads, supplied with new paradigms and new conceptualizations, to go forth and bring peace.
Only a cynic would suggest that Menkel-Meadow's visionary words of wisdom are, in fact, a cascade of fatuous jargon meant to burnish the egos and sense of self-importance of law professors.
Menkel-Meadow is not merely speaking to a domestic audience. She has helped to foster global peace through legal education by traveling to Oñati, Spain, to present a paper called "Too Many Lawyers? Or Should Lawyers be Doing Other Things?" and to Beijing to participate in roundtables on experiential legal education methods. Hopefully, her next expense-paid international trip will be to Stockholm to accept a Nobel Peace Prize.
Only a cynic would suggest that Menkel-Meadow's visionary words of wisdom are, in fact, a cascade of fatuous jargon meant to burnish the egos and sense of self-importance of law professors.
Menkel-Meadow is not merely speaking to a domestic audience. She has helped to foster global peace through legal education by traveling to Oñati, Spain, to present a paper called "Too Many Lawyers? Or Should Lawyers be Doing Other Things?" and to Beijing to participate in roundtables on experiential legal education methods. Hopefully, her next expense-paid international trip will be to Stockholm to accept a Nobel Peace Prize.
Menkel-Meadow asserts that law students are needed in order to deal with remaining "distributional injustices." Seemingly, one such "distributional injustice" is called the "law school scam," which makes multi-millionaires out of law faculty by reducing those very students to debt slavery. But perhaps scamming law students is the price that society must pay in order to produce peace, justice, and well-being in the world.
Notes:
[1] For 2014,
Menkel-Meadow's base
pay as a law professor at the University of California-Irvine was $297,367.
She also received an additional $33,611 in "extra pay,"
bringing her gross annual pay to $330,978. Not bad for someone whose purpose in obtain a legal education was to seek justice and peace, as opposed personal gain. See Crisis in Legal Education, at 159.
[2] I prefer to think of myself as an "advocate" than as a "relational agent," but that may reflect my own misconceived paradigm. While we are creatively exploring professional euphemisms as a means of finding new solutions in troubled times, how about "scamation agent" for "law professor."
[2] I prefer to think of myself as an "advocate" than as a "relational agent," but that may reflect my own misconceived paradigm. While we are creatively exploring professional euphemisms as a means of finding new solutions in troubled times, how about "scamation agent" for "law professor."
[3] I appreciate that
Menkel-Meadow invokes her students, those budding young champions of Global Justice, whose creativity and collaborative skills she has helped to
nurture. So it is worth checking her reviews on the "Rate my
Professor" site. Menkel-Meadow earns a stellar 1.9 on a 1 to 5 point scale,
with commenters raving about her humility, graciousness, and generosity in
granting permission to go to the bathroom.
She has outrageous claims like "I invented the concept of 'thinking outside the box'"
ReplyDeleteThat Rate My Professors page is a goldmine.
She also invented the cotton gin. And fire. And nuclear fission.
DeleteTake a look at her CV - she still has her CALI award from law school 45 years ago on it! I don't think I've ever seen that before.
DeleteGet into a contract dispute between a general contractor on a multi-million dollar construction job, on the one hand, and an electrical subcontractor, on the other, when it comes to change orders, unpaid invoices, schedule delays, and the like. See how much both parties are interested in "peace" and "justice." If you don't think "winning" and "money" isn't what 90% of disputes are actually about, then I've got a bridge to sell you.
ReplyDeleteNot all of us can work at the Hague, Ms. Menkel-Meadow. Or be a law professor pulling down $300k. Maybe that is why money seems "unimportant," you know, when one already has so much.
During three years of contentious litigation of the type you so accurately describe try sending a monthly invoice for "seeking peace." Five will get you fifteen large someone else will be sending the invoices long before three months are up.
DeleteMenkel-Meadow's visionary words of wisdom are, in fact, a cascade of fatuous jargon meant to burnish the egos and sense of self-importance of law professors.
ReplyDeleteAnd jobs for the law students?
ReplyDelete"Let them eat cake" said the learned law professor.
How much is UC-Irvine Law going to cost when it's teaching world peace and distributive justice?
ReplyDelete"World peace" is one of "the crucial problems of our time"? Is this hackademia or the goddamn Miss America pageant?
ReplyDeleteDybbuk, I don't think that those are scare quotes. She seems to use quotation marks as mere ornaments. Much of the time the quotation marks, conventionally construed, undermine whatever tripe she is writing. The editors should have removed the damn things.
ReplyDeleteThe editors should never have published the damn thing.
Delete—— It is not that there are too many lawyers, or too many law school seats, or even that there are not enough jobs, it is that those who are trained by studying law could study different things and practice or work with more appropriate knowledge bases and skills sets.
ReplyDeleteYes—such as plumbing, welding, truck driving.
—— In this Article, I will suggest that legal education and the work of those calling themselves lawyers could be and should be more broadly defined if the goals of the legal profession include solving human problems and producing peace and justice, as these are "value-added" forms of social goods produced by having legal knowledge.
That's all very sweet (in a cloying way), but most of us outside the ivory tower have to get real jobs in the real world, and there just aren't any openings for value-added generation of world peace or whatever the fuck you are bloviating about.
—— my colleague Sameer Ashar says lawyers should conceive of themselves as "relational agents," or as we dispute resolution theorists like to call ourselves, "social and legal relationship engineers" or "process architects" (pick your own favorite comparative professional metaphor!)
Like Dybbuk, I consider myself an advocate. Perhaps to some effete hackademics that lowly word, besmirched as it is with the grease and dirt of practice (gasp!), seems anything but inviting. But it's simple and true, unlike this pretentious shite of engineering processes and orchestrating relationships and whatever the hell else.
—— Some might study law to practice, others to train their minds in "legal thought" (logic, order, inductive and deductive reasoning), others as an overlay on some other field" (science, economics, business), and others just to become educated citizens of their countries or the world.
For a quarter of a million in non-dischargeable debt, not many people are going to do it on a lark.
Dybbuk, you rock. This is the problem with "higher learning" these days: it's no longer about preparing young people for careers, or even just teaching people stuff; it's about making a sh*tload of money, off the backs of young people, their parents, and the American taxpayer. It's a spectacular racket, and the leeches will continue to defend it as long as those sweet student loan dollars are continuing to fund it. America, we've got to come up with a better way of funding higher education. This system is broken.
ReplyDeleteJust end all gubmint and gubmint guaranteed student loan programs and the leeches will have to choose between a job that involves asking about french fries and competing on price. People don't believe me when I tell them TTTs cost almost as much if not as much as HYS.
DeleteUsed to be the American automobile industry was based on a step ladder of status and corresponding price ranges. Plymouth-DeSoto-Dodge-Chrysler-Imperial. Chevrolet-Pontiac-Oldsmobile-Buick-Cadillac. Henry Ford held out but finally gave into market realities and launched the Mercury brand. Mr. Chevrolet price-brand buyer wasn't going to get that shiny Cadillac to make his dreams come true because the gubmint would no more lend him money he was unlikely to ever pay back than the bank was.
Anyone who can come up with the money can buy a Cadillac, but not just anyone can buy a degree from Harvard Law. That too helps to explain why a degree from La Toilette costs roughly as much as one from Harvard, despite the immense difference in value.
DeleteAll of the "values and skills" enumerated in point number 2 are taught in any decent one-year HR program -- at at least 1/3 of the cost, and by folks who are actually trained in these field. They are also taught in any decent MBA program, plus much, much more.
ReplyDeleteAbsolutely correct. LawProfs think they have a "lock" on all things moral and ethical by having a passing familiarity with Civil Procedure.
DeleteFunny, they don't mind drowning students in unconscionable amounts of debt in order to say so.
Indeed, there's absolutely no reason to think that people who happen to be law professors know anything special about world peace, leadership, and so on—still less that they can impart such knowledge to others. For that matter, many of them don't know much about the theory, never mind the practice, of law.
DeleteThis woman is one of the few women graduates of an elite law school in 1974 who was able to make a very good living long term. Most of the women Harvard and Yale Law graduates, let alone Columbia graduates of that vintage are struggling at jobs that do not pay six figures, if they can work at all. Most are underemployed, if not unemployed.
ReplyDeleteYou are not doing enough justice to this woman for her personal accomplishments, being able to work at a high paying job 42 years after graduation from Penn Law School. She is in the 1% of women law school graduates of her vintage.
ReplyDeleteIt is important to understand that older women can lawfully be disciminated against. Only a tiny percentage of the women who are 52 or older and graduated from a top 6 law school (she graduated from Penn) will earn anything close to the $160,000 to $180,000 starting salary from those law schools.
These older women who graduated from the top law schools are the scum of the legal profession. Law firms with stable practices and high incomes are overwhelmingly white male for lawyers age 52 or older. These older women are not hired or retained by big law firms, it is perfectly legal. A few lucky ones are in house or in the federal government, where there is good pay.
Most of the older women graduates from the top law schools are have nots in their jobs. They have terrible, marginal jobs. Some have counsel positions to a firm 10 to 60 lawyers where they cannot find the work to work anything close to full time and earn about 40% of the total compensation of a similarly experienced public school teacher in their geographic area.
Most of these older women who graduated from top law schools are subject to the worst discrimination in hiring - such that you would not believe there are laws against dual age and sex discrimination.
I met one of the older women who graduated around the time of the lady professor covered in the article. This older woman was temping at a major corporation, praying for a job that she knew she would not get. That is because major corporations as a rule do not hire women lawyers over the age of 60. It not that they discriminate - it is about "fit" and "comfort" which means people at work are not comfortable with older women. That is perfectly legal - to apply "fit" and "comfort" standards to keep most women over the age of 52 out of lucrative in house lawyer jobs.
These older women lawyers, who were pioneers in establishing women in the legal profession in any meaningful way now find themselves subject to the most incredible forms of age discrimination - where a degree from a top law school like Penn is useless in getting a job as lawyers. Almost none of the women from the top 6 law schools who are over the age of about 55 have a full-time permanent legal job that would meet the first year reporting standards, because they cannot get these jobs. This horrific dual discrimination in the legal profession is all perfectly legal.
You make some valid points. But 1) the author of the execrable journal article at issue has had TENURE for decades. She just doesn't face the same employment pressures/worries that affect mere mortals. And 2) are you somehow under the impression that men in their 50s or 60s don't face age discrimination as well? You write as if you think a 60-year old male attorney has great prospects. Why the long rant about women and age discrimination, as opposed to the plight of older employees generally? (And yes, I know recently minted J.D.s in their 20s face a world of problems as well. Hell, so do lawyers of any age in the current legal economy...)
DeleteAge-based discrimination kept fortyish Old Guy from finding work at all. It strikes people as young as 29, perhaps younger still.
DeleteThe white males I know with elite law degrees tend to be able to work much longer than similarly situated women and minorities. True some elite male grads have trouble as they age but more elite women and minorites have trouble working at older ages.
DeleteAge discrimination is most prevalent in law. Doctors and nurses have less of a problem. It has to do with lawyer oversupply, so older lawyers are culled from the herd. The lawyer oversupply is at the entry level, at the post-clerkship level and at every other level, because the number of lawyer jobs drops with each passing year of a class from law school graduation.
DeleteThere is not a doctor or nurse oversupply, so they can work for a long time without hitting unemployment or underemployment due to age.
Pick your career wisely, to avoid age discrimination if you are still young enough. If not, welcome to the steadily and reliably growing club of unemployed and underemployed lawyers.
The other card that big law firms pull to keep out older graduates is the grades card. Years ago, there were fewer law school graduates, most people from top law schools got legal jobs and grades were lower because they were not inflated as today.
ReplyDeleteAll of the law schools require transcripts today. So if you try to apply as 38 year graduate of Penn Law School with some grades that look like B or C, or a number of grades of P or LP, whatever the grading system was back then, the transcript will produce an automatic rejection.
Back then, the law school and law school community were small, and virtually of all of its grads of the very top law schools were desirable to employers because it was so competitive to get in.
A woman from the T6 with 30 or 40 year old grades that was easily hired by big law at graduation is now almost always an automatic reject at big law. Her grades were mediocre, even though the top law schools did not rank their students.
So your average older woman lawyer is making $50,000 a year with her Penn Law degree and Penn undergrad degree with honors. She started at the equivalent of $180,000.
So frustrating, because the employment laws in the United States strongly support this type of dual discrimination based on age and sex.
The EEOC will not challenge dual discrimination. The EEOC calls it "disparate impact" discrimination and absolutely believes the status quo is okay.
Dual age and sex disparate impact discrimination in the legal profession is not okay, and it is leading hundreds of thousands of young women lawyers into a lifetime of failure and misery. They just don't know it because the employment data that is published obfuscates the horrific degree of discrimination against older women in the legal profession.
Top grades didn't overcome age-based discrimination for Old Guy.
DeleteTwo different things.
DeleteMuch harder for older lawyers to continue working as they age. There is a massive age pyramid for law jobs with six figure salaries partly due to up or out and class year hiring by law firms. Affects everyone, but is worse for older women and minorities
It is also harder to get an entry level job for older law students.
After reading this.... my god. A more perfect example of cognitive dissonance, or simple self-delusion, than that demonstrated by Ms. Menkel-Meadow may not exist in this world.
ReplyDeleteShe argues the law school scam is, well, imagined. She states, "[i]t is not that there are too many lawyers, or too many law school seats, or even that there are not enough jobs," without any further analysis regarding current employment rates in the legal profession. (I will not cite to her article in any way shape for form). Admittedly, I have only skimmed through her article as I have work to do for paying clients this morning. Her solution is equally cringe-worthy, "those who are trained by studying law could study different things and practice or work with more appropriate knowledge bases and skills sets."
Really?
You do realize my JD gave me one thing - a chance to sit for the bar exam. If could have become a practicing lawyer in this jurisdiction without graduating from an accredited law school I would have done so. Further, if I could have become a practicing lawyer in this jurisdiction without taking the bar exam I would have done so. I undertook both of those steps only because they were, and still are, mandatory requirements.
Back to the article. Menkel-Meadow suggests "what modern legal education should prepare students for is a set of values and skills that are informed by what 'legal' values and law offer to deal with what are essential human needs." Um, how 'bout legal education preparing students for the actual practice of law? Issue spotting, legal research and writing, ethical issues and things we actually deal with on a day to day basis?
Menkel-Meadow distills the values and skills down to two broad categories, the "realization of justice" and "general problem solving skills." The former is complete bullshit that I will waste little time addressing here. Justice? Are you fucking high? We've got a client, the facts and the law. That's it. We take what we have and we move forward through negotiation and litigation where necessary. The realization of justice has nothing to do with any of it. Sometimes it is fair. Other time, it is not.
The latter, well, an individual so incline could obtain "general problem solving skills" through reading "life for dummies" paperback books and the webpages in the internet. Failing that, an individual can obtain "general problem solving skills" in a variety of non-law degree and non-degree programs at substantially lower cost. The "general problem solving skills" are defined as (1) Fairness; (2) Peace; (3) Decision making; (4) Leadership, facilitation and management; (5) Creativity; (6) Counseling and collaboration; and (7) Governance. I don't know about the rest of you, but I have seen two of those employed in the practice of law, decision making and creativity. Neither has shit to do with legal training.
OK, rant over. I've wasted enough of my morning on this crap. Have a good weekend, everybody.
You can criticize it all you want. All of her writing has produced a huge success for her from a less than elite academic background for a law professor. An example of what an older woman needs to do to be successful.
ReplyDeleteI am not commenting on the substance of the article. Just on her resume of lots and lots of publications.
The hackademic ship has sailed. Getting on board in the late 1970s was easy; in the late 2010s, forget it.
DeleteDefinitely easier than now. The legal profession has a few haves and many more have nots. This woman is one of the few haves of women of her generation. This publication may not be the best of her writing, or the quotes may be taken out of context.
DeleteEither way, is bad to criticize one of the few underdogs who won the race for saying something that may be dumb.
Yes, an older professional women today simply needs to build a time machine, go back to 1974, and get insta-hired at T14.
DeleteAcademics who publish tons of tons of garbage are a dime a dozen. It means nothing outside the sciences other than that the academic has a light teaching load and a busy admin/research staff.
Most people hired by T14 as tenure track law profs were always top notch students from top law schools. Almost no exceptions except by marrying at top prof at a law school and getting hired as with Elizabeth Warren.
DeleteThis lady does work at the T14.
All of her writing has produced a huge success for her
ReplyDeleteLOL. All the student loan cash shovelled out by Uncle Sugar has enabled her and her fellow law professors to grow rich off the back of clueless lemmings.
The professor should create different "modalities" to prepare students to become NFL commissioner or hostage negotiator.
ReplyDeleteImagine learning how to do a real job from someone who had two years of experience 40 years ago. lol.
ReplyDelete