PrawfsBlawg: A Recipe for Trashing Legal Scholarship

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Sunday, November 20, 2011

A Recipe for Trashing Legal Scholarship

Just in time for Thanksgiving!

Ingredients:

• A premise based on a?hazy cliche, such as: "Of course, much of academia produces cryptic, narrowly cast and unread scholarship.";
• A few particularly esoteric article titles --?law & philosophy if possible;
• A complete misunderstanding of Ed Rubin's program for reform of the legal academy, which in fact seeks to increase?the role of legal research in law school pedagogy;
• A couple of hostile throw-away quotes from Supreme Court justices;
• A truly bizarre calculation of the "cost" of legal scholarship, based on back-of-the-envelope calculations and unsupported assumptions;
• An unwitting job candidate, whose scholarly work can provide a few more esoteric-sounding titles and food for ridicule; and
• An overall theme for the story (the nature of legal education) that is, in fact, something worth debating -- and in fact is being debated quite vigorously within the academy.

Directions: Mix together in the preeminent newspaper of our country.? Half-bake and serve.

Seriously, I hope other folks jump on this -- it's really demoralizing and infuriating to read this in the New York Times.??It's a head-scratcher.? I was just writing over at the Glom about the respect and appreciation the Delaware Chancery has for legal scholarship.? And then we get this.

Segal says at one point, in attempting to show the impracticality of legal scholarship:

Some articles are intra-academy tiffs that could interest only the combatants (like ?What Is Wrong With Kamm?s and Scanlon?s Arguments Against Taurek? from The Journal of Ethics & Social Philosophy).

The article is (a) a philosophy article written in (b) a philosophy journal (a self-described "online peer-reviewed journal of moral, political, and legal philosophy")?(c) by a philosophy professor.? I mean, really.? Is that the best you can do?

Posted by Matt Bodie on November 20, 2011 at 03:40 AM in Life of Law Schools | Permalink

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Comments

Maybe it takes a particular fatalistic worldview, or maybe I've just lived long enough to watch certain things cycle up and down, but I am not going to get overly frothed up over a reporter's story-selling take on what is probably a valid, if typically shallow, journalistic reflection on the current state of the relationship between the practicing and the academic sides of the profession. In other words, there's just enough truth in the story to make critics of legal academia righteous, and defenders of legal academia, well, defensive. If you want to see evidence of the pendulum swing, go back and read this critique of legal academia from 1983, written by my friend and fellow Michigan/Stanford alum, David Margolick, who thereafter went on to be the NYT legal beat writer, author of some big books, and a contributing editor to Vanity Fair. I can recall seeing this article which ran as the cover story in the New York Times Sunday Magazine lying on the table in the Dykema Gossett library some twenty-eight years ago.

What was the critique? As a Stanford alum, David focused on Stanford. "Though applications to Stanford, as at other top schools, continue to rise, class attendance, participation and interest are down. The interests and aspirations of faculty and students are diverging, with the former growing more diverse and imaginative in recent years, the latter more practical, careerist and cautious. The job market, moreover, continues to infiltrate and affect the educational process. For many students, law school has become more a conduit to lucrative positions in large law firms than an opportunity to ponder the larger questions about law and justice." He quoted Derek Bok: "Today, many of the best minds in the country head for the top law schools - Harvard, Yale, Columbia, Stanford, New York University, the Universities of Michigan, Chicago, Virginia, Pennsylvania and California at Berkeley - then on to Wall Street. Not everyone goes there merely because the jobs pay well - up to $50,000 for starting lawyers. Some are attracted by the apparent glamour of high-stake litigation and deal-making; others see such work as a springboard to careers in business or as way stations to law practice on their own. In any case, the overwhelming preference among top law graduates for such positions represents what President Bok called 'a massive diversion of exceptional talent into pursuits that often add little to the growth of the economy, the pursuit of culture or the enhancement of the human spirit.'''

And I apologize for the length of the following quote, but it's so quaint that I feel compelled to add it:

Legal education has seen some positive developments in the last 15 years - relatively modest by most standards but highly unusual in this hidebound corner of academia. A number of scholars centered around the University of Chicago injected economic considerations into traditional legal analysis. Another group of professors, largely young and leftist, known as the Conference of Critical Legal Studies, has challenged the traditional foundations of legal education and scholarship. A third approach, clinical training, in which students learn law by practicing it under supervision has gained increased acceptability at many schools.

Each of these schools of thought has sought to supplement, if not supplant, the century-old case method, in which students analyze appellate-court decisions in order to learn both legal principles and reasoning. Supporters of the approach say that aside from teaching students how to read cases and understand legal precedent, it makes them more intellectually rigorous, more skeptical of dogma and better able to see all sides of an issue - in short, better advocates.

It is unclear how much curricular reform trickles down to law students - or how much they even want it to. Indeed, many students seem to expect little from the roughly $40,000 they invest in a Stanford education, regarding the money more as a licensing fee than as an educational expense.

"For most students, nothing that goes on in law school matters - it's simply a credential," observes Mark Kelman, who joined the Stanford faculty in 1977. "The most common student here is getting none of the real new clinical training, none of the new, financially sophisticated courses, no law and economics, no nothing. What this place offers is a ritzy degree, and there's a legal requirement that you spend three years here to get it."

Get it? The problem thirty years ago was that Langdellian education didn't instill critical thinking abilities, and theoretical stuff like Law & Econ and CLS would! Plus ca change, plus c'est la meme chose. The consistency, however, is that lawyers are wonderful advocates, and often the best defense is a good offense. The right thing to do, it seems to me, in response to this "Occupy Law School," as we would to "Occupy Wall Street," is to get beyond the rhetoric, sloppiness, lack of organization, unclear motivations, and desired ends of the movement, and take seriously the grains of truth that need to be taken seriously.

Posted by: Jeff Lipshaw | Nov 20, 2011 8:47:28 AM

Spot on. The article was tremendously disappointing. I'm surprised the NYTimes would print something this unbalanced.

Posted by: ano | Nov 20, 2011 8:47:29 AM

I'll also add that Kamm/Scanlon v. Taurek is quite important. The issue they are fighting about is "Should the Numbers Count?" Depending on how one answers that question, most of health and social welfare policy, and many other areas of law and policy, should come out differently!

Posted by: I. Glenn Cohen | Nov 20, 2011 9:10:50 AM

And print it on the front page no less.

Posted by: anonymous | Nov 20, 2011 9:12:29 AM

The treatment of the job applicant was appalling, and totally unnecessary.

Posted by: anonymous | Nov 20, 2011 9:18:18 AM

A serious question, if perhaps a naive one: What, exactly, is driving David Segal? In the past few months, he's produced a series of articles about law schools, not one of which is free from the angry, venomous, and steeply slanted voice so obvious here. There's some truth in each piece, no doubt. But there's also more than enough sloppiness, slipperiness, and general disdain for the law school world that I wonder what's sticking in his craw. I hope others sense the same thing. Even more, I hope others can shed some light.

Great catch, Matt, as always.

Posted by: Achoo! | Nov 20, 2011 9:21:44 AM

He has apparently been reading the law school scamblogs over the past few years, and he seems to have adopted their mission and tone. He is a controversial figure among some of the bloggers. While they like the fact that he is taking it to law schools, he has been accused of ripping them off.

Posted by: anonymous | Nov 20, 2011 9:55:53 AM

I see this as a branch of tort reform - very organized lobbyists skilled in rhetorical flourishes are jumping on some valid and thoughtful critiques of legal academia to seize their moment to discredit lawyering entirely (especially since the trial bar is a large democratic party base, along with unions...see the trend)?

Posted by: anon | Nov 20, 2011 9:59:16 AM

Anon at 9:59, I think you are right. It's tricky, because there are many serious and valid critiques to be made of the academy. But this moment does provide an opportunity for others to make political gains in areas that have nothing to do with efficacy of law schools. One example-- the attack on tenure and the attack on unions are of a piece. At will employment for everyone is the goal. The Times is late to this game on the law school front. The Wall Street Journal has been on the law school is a fraud beat for some time now.

Posted by: anonymous | Nov 20, 2011 10:10:45 AM

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