Why don’t law professors know how to be lawyers?

I’ve made plain my disdain for the ways law schools neglect what anyone outside law school faculties would presume is the central purpose of law schools — to train law students how to be lawyers. Among the ways this neglect manifests itself is the second class status accorded most clinicians and legal writing professors — those professors whose focus is on teaching practice — in most law schools. Now Brent E. Newton, an adjunct professor at Georgetown and the Deputy Staff Director of the U.S. Sentencing Commission) has written Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, 62 S.C. L. Rev. ___ (2010). Here’s a taste of Newton’s article:

Especially at law schools in the upper echelons of the U.S. News & World Report rankings, the core of the faculties seem indifferent or even hostile to the concept of law school as a professional school with the primary mission of producing competent practitioners. … Regardless whether they possess a Ph.D., a vastly disproportionate number of new law professors graduated from so-called “elite” law schools, which not coincidentally employ the largest percentage of impractical faculty. “Law professors are a self-perpetuating elite, chosen in overwhelming part for a single skill: the ability to do well consistently on law school examinations, primarily those taken as 1L’s, and preferably ones taken at elite “national” law schools. Some critics contend this homogeneity in law school faculties has resulted in an ethos of perceived intellectual superiority and classism and has made full-time professors, at least those with tenure, jealous of their privileged positions. Other critics contend that many law professors are so absorbed in their scholarly pursuits that they are largely unconcerned with students’ needs – academic or otherwise. …

Could [a typical law school] professor whose primary scholarly interest is criminal law and procedure effectively prosecute or represent a criminal defendant at a felony trial? Could such a professor who writes law review articles about the First Amendment effectively represent a client in a civil rights litigation? Could such a professor whose expertise is securities regulation effectively represent a client or the government in an S.E.C. enforcement action? Imagine such professors being first-chair counsel in a complex civil or criminal litigation who must interview potential witnesses, take depositions and engage in electronic discovery, file and respond to summary judgment motions, conduct voir dire, present the testimony of an expert witness, cross-examine (and impeach) hostile witnesses, and make closing arguments to a jury. There are some full-time non-clinical law professors capable of competently representing clients in real cases, but they are the exception, not the rule, particularly among professors hired in recent years at highly-ranked law schools.

How can we expect law students to become competent practitioners if the core of full-time law faculties, notwithstanding their scholarly prowess, do not themselves possess even the basic skills required to practice the type of law about which they teach and write? How can we expect law students to become competent and ethical practitioners when the faculty members best suited to teach them the necessary practical skills and ethical lessons from real-world cases – clinicians, LRW [Legal Research & Writing] professors, and adjuncts – are marginalized and even openly held in disdain by some members of the “main” faculty?

The good thing about being a lawyer is there’s always someone to tell you you’re wrong.

Jeffrey R. Di Leo, Dean of Arts and Sciences at the University of Houston-Victoria, writes in “In Praise of Tough Criticism” that academics are reluctant to criticize one another and that, as a result, their disagreements are couched either in faint praise or anonymity, both of which neutralize the very disagreement that ought to be the foundation of intellectual life:

[G]iving faint praise is far worse than saying nothing at all. Why? Because silence is not a critical judgment—but faint praise, in contrast to honest and direct criticism, is empty criticism, the most banal form imaginable.

Another way that compassionate, caring critics get around their credo is to shroud their negative comments in anonymity. . . .

Like faint praise, anonymous criticism is empty criticism. Consider a recent example from The Chronicle Review. Carlin Romano’s article “Heil Heidegger!” was savaged in numerous anonymous comments. “Romano writes like an undergrad convinced by the argument of the last book he has read,” wrote one critic. “And, yes, he is a professor of philosophy, and yes, he was a Pulitzer Prize finalist, but his understanding of philosophy is so paltry that it beggars belief.” To that and other similar comments, Romano responded: “Those who savage me and my article from behind anonymous Internet tags emulate the cowardice, dishonesty, and taste for mobbing of the Nazi thinker they revere. It has often been that way with dupes who defend Heidegger—an abysmal thinker and writer, an immoral monster, and a disgrace to the historic enterprise of philosophy.”

Whether or not one agrees with Romano’s views of Heidegger, his take on anonymity is worth thinking about. Anonymity has more in common with cowardice than with courage—and is antithetical to critical dialogue. The common rationale for academic anonymity is quite clear: Honesty and truth require anonymity. To offer critical judgment anonymously, or, as Michel Foucault puts it in The Archaeology of Knowledge (Pantheon Books, 1972), as “a nameless voice,” allows one to stand outside the order of discourse, dialogue, and language. Writes Foucault, “I don’t want to have to enter this risky world of discourse; I want nothing to do with it insofar as it is decisive and final; I would like to feel it all around me, calm and transparent, profound, infinitely open, with others responding to my expectations, and truth emerging, one by one.” In other words, anonymity is more calming and less risky—or even more cowardly—than named criticism.

The inclination to pull one’s punches, to refrain from stating straight out one’s disagreement with one’s colleagues and the reasons for the disagreement, seems to me a particular problem in law schools. I always tell my students that one of the blessings of being a lawyer is that there’s always someone telling you you’re wrong, whether it’s your adversary, a judge, or even your client. That constant challenge to your views forces you to both be as thoughtful and well-spoken as is possible, and it forces you too to trust in your own judgment, not to defer always to authority. Lawyers disagree as a matter of professional duty. If law professors refuse to voice disagreement, they are therefore doing their students a disservice. they are like parents who model irresponsible behavior to their children.

I’m not suggesting one not be civil. Nasty adversaries make wonderful work unpleasant. But professional adversaries are a pleasure. They recognize that disagreement is one’s professional duty, and they don’t take your disagreement with them personally.

Addendum: Law professors don’t like telling their students they’re wrong either.

Students don’t like professors who teach them the really difficult things.

As I wrote the other day, one of my most difficult tasks as a teacher is to get students to focus on learning rather than on grades, to try to master the skills I am teaching rather than insist on being told what they need to “know” in order to get an A. In doing so, I may be insisting on what I ought to be insisting on if in fact I am trying to advance my students on the exceedingly difficult road to becoming excellent lawyers, but I may also be undermining my own professional advancement. How can that be? Well, it’s been clear to me for a long time that I pay a price with students when I am unable to simply tell them that they need to know and do “A, B, and C” to get a good grade. Those students give me terrible evaluations. And, indeed, I’ve found students tend to either love me or hate me. Those students who get that I’m pushing them to learn and do things they’ve never been taught to do and learn before love me. They realize learning is the result of the work they put into learning, not the result of what I give them in nice, neat packages to regurgitate to me as information they’ve memorized. But the bad evaluations not only hurt; they have an impact in the evaluation of my performance that would perhaps astonish those outside academia. (Why in the world would an organization give credence to the evaluations of terrible students — (whose evaluations, done anonymously, cannot be distinguished from the evaluations of excellent students?)

And now I have evidence that my deep doubts about the reliability and use of student evaluations are well founded. In a study entitled “Does Professor Quality Matter? Evidence from Random Assignment of Students to Professors,” (pdf) Scott E. Carrell of the University of California, Davis and National Bureau of Economic Research and James E. West of the U.S. Air Force Academy conclude that students give good evaluations to professors who teach students what they need for a good grade in their course but punish professors who teach subject matter that provides knowledge and skills that have long-term value:

[S]tudents appear to reward higher grades in the introductory course but punish professors who increase deep learning (introductory course professor value-added in follow-on courses). Since many U.S. colleges and universities use student evaluations as a measurement of teaching quality for academic promotion and tenure decisions, this latter finding draws into question the value and accuracy of this practice. (emphasis added)

Addendum: Stanley Fish expresses feelings similar to mine about students’ abilities to judge the quality of teaching in connection with proposals in Texas “for college and university teachers to contract with their customers — that is, students — and to be rewarded by as much as $10,000 depending on whether they meet the contract’s terms. The idea is to hold “tenured professors more accountable” (“A&M regents push reforms,” The Eagle, June 13, 2010), and what they will be accountable to are not professional standards but the preferences of their students, who, in advance of being instructed, are presumed to be authorities on how best they should be taught”:

[S]ometimes (although not always) effective teaching involves the deliberate inducing of confusion, the withholding of clarity, the refusal to provide answers; sometimes a class or an entire semester is spent being taken down various garden paths leading to dead ends that require inquiry to begin all over again, with the same discombobulating result; sometimes your expectations have been systematically disappointed. And sometimes that disappointment, while extremely annoying at the moment, is the sign that you’ve just been the beneficiary of a great course, although you may not realize it for decades.

Needless to say, that kind of teaching is unlikely to receive high marks on a questionnaire that rewards the linear delivery of information and penalizes a pedagogy that probes, discomforts and fails to provide closure. Student evaluations, by their very nature, can only recognize, and by recognizing encourage, assembly-line teaching that delivers a nicely packaged product that can be assessed as easily and immediately as one assesses the quality of a hamburger.

And I don’t mean to suggest student evaluations are pointless. Like at least one commenter, I have gleaned very valuable things from my student evaluations. But I know too that they are also rife with the kind of hostility and irrationality that can only come from anonymity and the kind of profound discomfort that can come from genuinely educational experience. Finally, I know too that everyone gets negative student evaluations. The biggest problem is that the process of evaluating teachers has become so dependent on evaluations that the availability of negative evaluations means that the evaluators always have available “evidence” to support their desire to refuse promotion to a faculty member they don’t like for reasons that have nothing to do with the quality of their teaching.

Law students: what you learn is more important than your grade!

Ray Ward is a wise man. He sums up in a sentence what I often spend a year trying to get through to my students:

What you learn in a course is more important than your grade for that course.

It’s a particularly difficult point to get across to law students. One reason is that law school itself is packed almost entirely with people who feel that there’s a strong correlation between what you’ve learned, your intelligence, and your grade. Virtually all law professors had the highest or near the highest GPAs in their graduating classes from elite law schools. In my experience, people who succeed in an institution tend to believe that institution is very good at measuring success. Thus, law professors tend to think law school grades are good measure of success at learning law. And law students don’t know any better. They have no way to measure their success but grades. There is virtually no other feedback on their performance and their progress.

Lawyers I know genuinely do feel differently — that law school grades are poor predictors of success as a lawyer, and what studies there are confirm that the typical predictors of law school success are not good predictors of success in legal practice.

But it’s not easy getting that message across to law students, especially when your law professor colleagues don’t agree.

The new economy, the billable hour, and law school tuition — change is afoot.

When things change, things change.

I’ve written at length before about the perversities created by the hourly rates charged by lawyers. Hourly billing has been the standard practice in most of legal practice for the past 50 years or so. The practice on its face is troubling — just as our current health insurance scheme provides incentives for doctors and hospitals to do and bill more (and, conversely, to engage in less preventative medicine), so too does the billable hour provide incentives for lawyers to do more and, therefore to bill more.

The system has maintained itself in the same way many of our economic practices have maintained themselves — by means of an every increasing pie. And from the provider end the inflation worked its way down to every level — bills, salaries, hours, and law school tuition all skyrocketed. The tuition rise could be paid for by loans that could be paid with inflated salaries. The inflated salaries were paid by inflated bills, which were produced by inflated hours.

And in 2008 the whole edifice came crashing down. Now, all the talk is about different billing practices.

We’re all still waiting for the change, however. One outcome of a change would be, I hope, a decrease in the use of sheer economic weight to out-litigate an economically disadvantaged adversary. As things stand, as much as I hoped always to be efficient for my client, the adversary would require me to do more than I otherwise would if the adversary chose to contest every matter and to thoroughly investigate every single piece of discoverable evidence (no matter how trivial or irrelevant).

And U.S. students are desperate for relief from the tuition costs the billing practices have raised. Legal jobs are scarce, and those that exist are at depressed salaries. But tuitions have not yet come down. They’re going to have to.

Teaching legal imagination: Harvard dean calls for it, I am grateful, but a lot of work remains.

Kristopher Nelson of in propria persona graduated from Harvard Law School in May and now is a graduate student in the history of science. He astutely observes that law school emphasizes training its students to practice law but does a rather poor job of actually doing so: “Law school . . . while pushing the prac tical, does not teach it.” As I’ve made clear, I think his criticism is particularly well placed when it comes to Harvard.

So I am happy to see that Nelson points to an article written by co-written by Martha Minow (pdf), the new dean of Harvard Law School, in which Minow and her co-author, Todd Rakoff, explicitly acknowledge that law students need more. What do they need? I think Minow and Rakoff are right to identify it as “legal imagination”:

[S]tudents need more, and they need more not for arcane or unusual careers, but simply to be good lawyers. While an expert in differentiating mental skills could probably produce a raft of labels for what they also need, when we think of what students most need that they do not now get, we think: “legal imagination.” What they most crucially lack, in other words, is the ability to generate the multiple characterizations, multiple versions, multiple pathways, and multiple solutions, to which they could apply their very well honed analytic skills. And unless they acquire legal imagination somewhere other than in our appellate-case-method classrooms, they will be poorer lawyers than they should be.

How will they be taught this legal imagination? By being given “cases” more like students are given in business school than students are given now in law school: complex problems in which the students are required to generate real world alternatives, recommend the best, and be evaluated on the quality of their judgment:

[T]he type of materials we have in mind can be described in general. Students ought to be presented with relatively dense materials that lay out a situation, experienced as a problem for a person, or group of people, for legal treatment. Students should face a choice that challenges them to identify options and that permits multiple resolutions, sometimes within a relatively tight ambit. Such resolutions might include issues such as which settlement offer would make it sensible to forego litigation. Sometimes these choices might be within broader (but still specifiable) alternatives, such as whether trying to get particular legislative language adopted would be feasible and preferable to private ordering. The problems ought not to be situated in one doctrinal area, but should present opportunities for mental maneuvering around the legal universe. Teaching should emphasize generating alternative solutions as well as appropriate grounds for choosing among them. And criteria for resolution should include legal, normative, and practical considerations.

Of course, Minow and Rakoff also believe that “following the business school model, we think that case writers will need to get their materials from practitioners.” Why isn’t this already going on throughout law school? One reason, I’ve always believed, is that law professors are those who have done best in law school (not necessarily, or even usually, as lawyers), so they perpetuate the existing institutional model in their belief that if law school has identified them as the best and brightest it must be well designed. Law professors are not unique in this tendency. Anyone who succeeds in an institution has a vested interest in believing the institution’s promotion procedures are very good at judging genuine merit. 90% of law firm partners will tell you their firm is better than most at judging associates. And Minow even recognizes this impediment to the change she calls for:

Law professors were good law students, and given the history of legal education, this means that they almost universally feel comfortable handling appellate opinions in the classroom even if they have no experience doing so in practice. By contrast, for many of us, the arenas of the legislature, the agency, the political movement, the media— perhaps even the trial courts—are ones we may only remotely watch. Ideally, case studies and teachers’ notes could be crafted so that they could be taught by professors as we know them in law schools as we know them. But, frankly, many of us will need to learn some new things.

I am thrilled that the dean of Harvard Law School is making these arguments. As goes Harvard, so goes virtually every law school in the country. But there is also another piece of the puzzle that needs to be put into place, as I’ve previously written about: how in the world can we measure whether we are effectively teaching “legal imagination”? In many ways I think I’m ahead of Minow in trying to do what she calls for. But until I can prove that what I am doing in fact teaches students how to be lawyers better, I’m afraid that I won’t have a ton of influence. Fortunately, Minow, merely because she is the dean of Harvard Law, can have influence even without first proving what she is arguing for works.

Lawyers need to learn EVERYTHING.

A student complained to me yesterday that he was being penalized on his law exam because he didn’t know as much about the world as other people. I laughed. I would imagine that greater knowledge about the world would lead to the better performance in any occupation. But the complaint highlighted something unique I think to law. First, law does not stand alone — it only operates in connection with specific activities. If you’re a lawyer for an investment banker, you better understand credit default swaps. If you’re a lawyer for a real estate developer, you better know an awful lot about building. If you’re a family lawyer, a heavy dose of sociology and psychology would be very helpful. Lawyer need to be experts about the REALITY they are acting as lawyers within. The rules are the easy part. The hard part of lawyering is figuring out how to take evidence and use it effectively to interpret and apply those rules. The more you can explain persuasively what and why things happened, the more you can persuasively argue what the law means when it applies to what happened.

It also highlighted part of what I love about law. Every client, every problem, and every transaction requires me to learn about people and things that  I never knew before, often about people and things I had no clue even existed. The world is a very interesting and complicated place, and there’s no end of learning.

The fact my students know a lot less than I do is no surprise. Most of them are more than 25 years younger than I am. But they need to know that they always need to learn more and that I’m not penalizing them for not knowing things they haven’t been exposed to — I’m teaching them that the more they’re exposed to the better they’ll perform as lawyers.

Detroit Mercy is one of the most innovative law schools in the U.S.

Many people (more often lawyers than law professors) believe law school education is in dire need of innovation. I am very proud to note that the school where I am teaching this year, the University of Detroit Mercy Law School, was featured in the current issue of National Jurist’s PreLaw Magazine as one of the ten most innovative law schools in the U.S.

Who’s the good guy?

When they begin studying law my students most of my students, like children and cartoons, divide the world into good and evil. They believe that most cases can be explained by figuring out who’s the “good guy” and who’s the “bad guy.” To the beginner, every explanation is a strained effort to demonstrate why someone in a case has lied, cheated, or stolen. I try to explain to them that cases involving evil doers victimizing innocents are the easy ones. More importantly, perhaps, they’re the rare ones. The tough stuff to understand and explain are the vast majority of feuds, the feuds in which each side believes it is acting in good faith and for the best.

Life inevitably results in misunderstandings, accidents, mistakes, death, and failures (of investments, businesses, buildings and bridges, operations, etc.). Doing justice is most sensibly and correctly resolving the fights that result from those inevitable, though regrettable, events.

Justice, therefore, is blind.

So I am particularly disturbed by the willingness of people to cast aside the law on the grounds that certain lawbreakers meant only to do good. Charles Fried, Solicitor General under Reagan, for example (whose scholarship on Contracts I very much respect), condemns torture without qualification and yet argues we can’t prosecute people who decided to break the law and order torture because well, . . . unlike actual criminals the people who justified and ordered torture meant well:

But should the high and mighty get off when ordinary people committing the same crimes would go to prison? The answer is that they are not the same crimes. Administration officials were not thieves lining their own pockets. Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf. And the same is even truer of the lower-level officers who followed their orders.

They are the same crimes — breaking the law in the belief that breaking the law is justified. Then why should Dick Cheney and the lawyers who lied about the law to justify torture get off?

Michael Mukasey is the Attorney General, and this week he apparently made the decision not to prosecute a former Justice Department lawyer who quite plainly could be indicted and tried for breaking federal law:

[A] former senior Justice Department official, Bradley Schlozman, set out to hire so-called “Right-Thinking Americans,” including members of the Federalist Society and other Republicans, for what were supposed to be apolitical career positions. He then gave them plum assignments on civil rights cases when he was helping to run the Civil Rights Division, beginning in 2003. . . . Mr. Schlozman . . . gave false statements to Congress when he repeatedly denied factoring politics and ideology into his hiring decisions.

The . . . case against Mr. Schlozman relies heavily on his words, from e-mail and phone messages to colleagues and underlings. His disdain for the traditional independence and mission of the Civil Rights Division is palpable. He spoke brazenly about reshaping the division by doing away with “pinko” and “crazy lib” lawyers and others he did not consider “real Americans.”

“As long as I’m here, adherents of Mao’s Little Red Book need not apply,” he wrote in one e-mail message. The report found that Mr. Schlozman transferred three lawyers out of the division because they were viewed as liberals who opposed his political agenda. The transfers, the report found, violated federal civil service law and “constituted misconduct.” All three lawyers brought federal discrimination claims and returned to the division after Mr. Schlozman’s departure.

Yet, without explanation, the Justice Department has decided not to prosecute Mr. Schlozman.

Charles Fried and Michael Mukasey can identify with federal officers and lawyers. They are or were federal officers and lawyers. They know even when people try hard things sometimes go wrong. But that doesn’t mean people who set out to do wrong things for even good reasons are above the law.

Fried and Mukasey know that, but somehow that knowledge escapes them when the defendants look and act just like them. That’s not the rule of law. It’s the rule of an aristocrats watching out for each other.