Monday, August 22, 2011

Legal academia and the problem of bad faith

The godfather of critical legal studies, Duncan Kennedy, once described the problem of bad faith in judging as the half-conscious denial of its ideological element:   "The ideological element is a kind of secret, like a family secret . . . that affects all the generations as something that is both known and denied." The cls project was (is?) an attempt -- one that seems to have been largely unsuccessful -- to get legal academics to acknowledge consciously that the possibility of politically neutral judging was an illusion. 

But bad faith -- the half-conscious rejection of something that is at the same time both known and not known -- is endemic to legal academia in another way: one that is crucial to the law school's legitimation of the legal system.  Legal academics are professors of law because they don't want to be lawyers. Of course this has always been true to greater and lesser extents, but it's now become true in a particularly stark and disturbing way.  This is an unusual position for people teaching at research universities to find themselves in. 
Most academics at research universities engage in two kinds of teaching: the general edification of undergraduates, and the professional training of graduate students who, in theory at least, are being prepared to replace their professors.  Law school professors aren’t doing either of these things. Instead, they’re preparing (sort of) people to do something they wouldn’t do if you paid them a whole lot more than what they’re getting paid now. The reasons for this stark disjunction between the professional identity of legal academics (which is structured around fleeing the practice of law) and their functional role (which at least in theory involves preparing people to spend the rest of their lives practicing law) are not very mysterious.

There's a mountain of evidence that the contemporary practice of law has become, for most attorneys, somewhere between very unpleasant and deeply excruciating.  As a commentator at Lawyers, Guns, and Money put it recently:

Academics tend to miss the sheer drudgery and asswork involved in being a lawyer; the only reason people do it is because they believed at one point they’d be millionaires. If you are reasonably likely to make as much money being a nurse, no one will go to law school. I don’t know why so many reformers think there’s a bunch of potential lawyers in Los Angeles waiting in the wings to get yelled at by judges for $60k a year – their entire career.

 Even the academics that practiced for a long time tended to have surprisingly, uh, delicate careers; I don’t think many of them were hired to handle appearances day after day. Being an attorney is pure ass, and the only reason people do it is the idea of riches. A lot of attorneys don’t get to riches, but if you’re 45, w/ 20 years in on your job, you don’t have a lot of choice.
Like most law professors today, I barely practiced law (The average time spent in practice by tenure-track law faculty these days is around three years, with the "practice" in question usually consisting of junior associate drone work at a mega-firm.  It's not much of an exaggeration to say that the sum total of what such people learned about the practice of law is that they wanted to escape it as soon as possible. And of course, as the commentator notes, these people had what are usually considered the "good" legal jobs).

Law school hiring committees are bombarded with resumes from partners at big firms who would love to be considered for a tenure track slot.  On the other hand, how often does a tenured law professor quit to join a law firm? About as often as federal judges do. Here's Richard Posner's amusing analysis of Chief Justice Roberts' claim that there's a crisis of under-compensation among federal judges (The original blog post link doesn't appear to work, so this quote is taken from Volokh's site):

The most serious omission in Chief Justice Roberts's report is the other compensation that judges receive besides their salaries. Most judges who want to can teach a course or a seminar at a law school and receive another $25,000 in pay ....The federal judicial pension is extremely generous--a judge can retire at age 65 with only 15 years of judicial service (or at 70 with 10 years), and receive his full salary for life.... The health benefits are also good. Above all, a judgeship confers very substantial nonpecuniary benefits. The job is less taxing than practicing law, more interesting (though this is partly a matter of taste), and highly prestigious. Judges exercise considerable power, not only over the litigants in the cases before them but also in shaping the law for the future, and power is a highly valued form of compensation for many people. Judges are public figures, even if only locally, to a degree that few even very successful lawyers are. And judges are not at the beck and call of impatient and demanding clients, as even the most successful lawyers are.
Law professors lack the power of federal judges, but some of them enjoy salaries that have now become twice as large as those of the federal judiciary,* and their other conditions of employment are even more pleasant than those which, as Posner points out in his relentlessly empirical way, ensure that federal judges almost never quit the bench to return to the practice of law.  (Note that almost all federal judges and tenured law professors apparently find the best -- in the sense of the highest-paying and most prestigious -- jobs in private practice less preferable than their current positions.  Let's not even discuss the jobs that the vast majority of attorneys actually do).

For most attorneys, law practice features mass quantities of two elements that in most jobs tend to exclude each other.  Boring jobs are usually not particularly stressful, and stressful jobs tend not to be boring, but the contemporary practice of law often somehow manages to combine large amounts of stress and boredom at the same time.  It's no wonder that lawyers seem to suffer from much higher than average rates of substance abuse, depression, suicide, and other symptoms of deep personal unhappiness.  (And these are the people who have jobs! As the old vaudeville punch line has it, second prize is two weeks in Philadelphia).

On top of all this, the subset of lawyers who appear by comparison to like their careers -- so-called "cause" lawyers doing public interest work -- are now competing for jobs that are for that very reason even harder to get than big firm associate positions, and which pay salaries that aren't close to sufficient to service $150,000 law school debt loads while also paying the rent and buying groceries.

Meanwhile, being a law professor is a cushier gig than ever before, even, or I should say especially, for legal academics who are "working hard."  After all, as an extremely distinguished professor at an elite law school put it to me a few days ago, "I think the idea of calling what I do a job, or work, is a misnomer. First of all because I love it. I am doing exactly what I would be doing if I were independently wealthy, except for grading papers and faculty meetings." Precisely. How many practicing lawyers could say anything even remotely similar about their jobs? 

Law professors are getting paid (and very well) to send people off to do jobs that they themselves wouldn't exchange for their present jobs for almost any amount of money.  Except of course, increasingly, their students are suffering a much worse fate -- massive debt, no job, and a resume tainted by a JD degree that, to many non-legal employers, might as well be a volunteer summer internship with Al Qaeda.  The legitimation function of legal education requires orthodox legal educators to celebrate the practice of law as a noble enterprise -- yet it is an enterprise that law professors, on the whole, want nothing to do with, especially in any of the forms in which it will be experienced (endured) by the vast majority of their students. 

That is a recipe for another version of the bad faith -- the half-conscious denial of a truth too painful to confront -- that Kennedy places at the heart of the legal system.

*Elsewhere Posner notes that for many years the salaries of senior Harvard Law faculty were designed to mirror those of federal judges. Needless to say those days are long gone.

Cross-posted at LGM.


  1. This comment has been removed by the author.

  2. I think you've lost the plot on this one. Who cares.

  3. Yes, very good point about the taint of the JD. Maybe one day you could elaborate on this some more. It is a particularly important point to be making when lawyer jobs are so scarce. There is not "so much you can do with law degree". You can do less!

  4. So, what is this about? Most professors in every discipline love what they do. That's why they stay in academia. Why encourage people to be envious of individuals who happen to be able to do what they love in life? Should people who love their job be punished because others do not love their job? I think None is right.

  5. "I am doing exactly what I would be doing if I were independently wealthy..."

    What utterly boring lives these type of people must lead.

  6. @ Calvin West--Why do you say that?

  7. The point is that law professors would not suffer the same fate as their students. The whole theme of this blog is that law professors are complicit in setting up students for shitty lives, either as employed lawyers or unemployed lawyers.

  8. I thought the theme of this blog is that there are not enough jobs for law graduates who want them.

    Seriously, what does it matter that many professors-- in all disciplines-- like what they do?

  9. The point I gather is that law professors love their cushy jobs but their jobs have little to do with the actual practice of law. They are very much disconnected with actual practice and are thus very much out of touch with what their law graduates are facing or will be facing. This is because most law professors have practiced law very little and actually hate practicing law!

    In contrast, professors of medicine are almost always people that are actually practicing physicians and know what actually practicing medicine is like.

    The other point to take away from this is that the professors of law are only able to hold on to their cushy positions on the backs of naive students who thinks that they will have successful and fulfilling careers practicing law, even as the law profs themselves disdain the practice of law and have practiced very little of law themselves.

    That's my take from this article anyway...

  10. @ Anon. 7:32:

    I think you make good points. I should say that. I think my problem with the post - and this comment, while in response to what you wrote, is not necessarily a disagreement with you because I think that we do agree on what LawProf wrote - is that for a huge percentage of law, who cares whether their professors practiced law. If you want to go that route, ironically, you're going to get a lot more practitioners and career lawyers teaching courses at lower rankled schools than at Harvard, but then, you're definitely not getting a job out of one of those places, but even in the first tier, if you're in the group that is unemployed or stuck in document review for 30 to life, what would it matter whether your professors are former managing partners or former circus performers?

  11. *a huge percentage of law students

  12. I really, really hope you do a post on the AALS law faculty hiring process.

  13. But, is this a revelation? We know what the law school model looks like. There are professors who consult, do work on criminal cases and the like. But the basic model has been known and set for some time. Law professors aren't the ones who tell students they are all going to have fulfilling careers. When I was in law school the profs were very clear about the drudgery and, to them, pitfalls of big law in particular.

  14. This is so true. I once asked my civil procedure professor the most simple question (an issue that had come up in my $20/hour job) and he was clueless. After a while it became obvious and I didn't want to embarass him. Stick to teaching Pennoyer v. Neff, professor.

  15. None wrote:

    "for a huge percentage of law, who cares whether their professors practiced law"

    Ummmm, huh?

  16. LawProf,

    You are wrong when you say professors don't want to practice! They would love to (a) consult for $500 per hour, (b) make oral argument on a supreme court case, (c) make a presentation to senators . . . That's practicing right?

  17. Forms of practice.

  18. However, by the spring of the first year of law school, 32% of law students suffer from depression, and by the spring of the third year of law school, the figure escalates to an astonishing 40%.


  19. The depression is due to all of the bullying and "Stockholm Syndrome" style indoctrination that has been a hallmark of law school for decades and decades. See the Paper Chase or 1L by Turrow.

    The problem is that, in the old days, such abuse would have a reward at the end, when you got a good job and entered a noble profession. The characters in The Paper Chase and 1L all got solid legal jobs, that they liked.

    Today, though, there is no such reward for the majority of law students. That causes them to be particularly resentful of that indoctrination period.

  20. Thanks I was also wondering what might be happening in the third year to get the 7% uptick. That's a significant jump.

    If you want to add to the depression I found this in a comment section about is blog, seems to ring true.

    Inside Higher Ed Hostile Witness


    The public consequences of the law school scam
    Posted by Jack Olson on August 9, 2011 at 10:01am EDT
    I'm a financial planner. Last week, I met a recent law school grad who owes $120,000 in student loans. Eighty thousand of this is being charged at 7% interest and the balance at 13%. I asked her how much she expected to collect once she hangs out her shingle and she answered, "To start, $50,000 a year." Assuming she pays 20% of her gross income in taxes, to pay off this debt in ten years would absorb 46% of her net income. Even stretching out the payments over twenty years would consume 32%, by which time she will have paid more than double the original balance. She cannot either file bankrutptcy or default on her loans and still be allowed to practice law.

    It is useless to expect anybody under that much financial pressure to help reform the practices which have given the legal profession its awful reputation for dishonesty. Instead, one should expect her generation of paupers with J.D.'s to give their clients even more heavily padded bills, more exorbitant fees for routine work and standard fees for substandard work, to file more nuisance lawsuits. The feeble professional discipline of lawyers will let them get away with it, too, especially once they get control of enforcing it.

    The basic reason the public despises lawyers is that they monopolize access to the courts, and thereby access to legal rights, to their own financial benefit. It's a cartel, but if you face a criminal charge or need to defend a lawsuit or probate an estate, you have no choice but to pay the cartel's price. The reason the new lawyers feel the need to borrow such exorbitant sums is that they are paying the cartel price of the law schools which monopolize entry to the legal profession. I doubt that the law professors who collect such high salaries for so little work see any connection between their own sweet deal and the public's acid hatred for lawyers.


    It also appears that the first post here is missing-can only seem to find Legal Scholarship:Part II

  21. Orrin Kerr at Volokh has posted about the subject today-here is his conclusion:

    Setting up a bogus faculty-vs-students narrative draws eyeballs to a blog. But it also alienates the group that is most able and willing to enact reforms that could actually improve things.

    I think there is an easy response to that-well then why haven't they?

    In fact I think a few of their associates who they should be extremely ashamed of have already answered that question-


  22. Yeah, it seems like professors have resorted to another form of threat, "if you accuse us of scamming you then we won't help you against the scam."


    See a good debate between Kerr and a student here

  23. It reminds me of the real estate hucksters on late night TV. (You know what I mean -- the "no money down" guys.)

    Despite the impression they wish to convey, I suspect most of those guys don't actually make their money by buying and selling real estate. Instead, I have a feeling they make their money by selling real estate seminars.

  24. I never considered becoming a law professor, despite the credentials for doing so (top 10 school,top 5 in class), because it seemed cushy but boring in sense of writing a lot of papers that nobody would ever read. There are some pretty interesting jobs in private practice, but you have to make your own path. I went BigLaw Associate, State Attorney General's Office, Firm Partner, and am now in house regulatory counsel to a large corporation, and many of my most interesting colleagues have similarly worn many hats. If you become enslaved to the money you get stuck, but if you are willing to take a pay cut, there are a lot of interesting things you can do as counsel with an impact.

  25. Anonymous 9:07PM, my sense is that only very few law professors consult or otherwise practice, either because their expertise is not of the sort that is in demand, or--quite often--because they honestly prefer doing their scholarly work and would see practice, even at $500 an hour, as a distraction. Moreover, those professors who do consult, practice, or provide expert testimony are often considered less scholarly by their peers and looked down on for that reason.

  26. "This is an unusual position for people teaching at research universities to find themselves in.
    Most academics at research universities engage in two kinds of teaching: the general edification of undergraduates, and the professional training of graduate students who, in theory at least, are being prepared to replace their professors. Law school professors aren’t doing either of these things. Instead, they’re preparing (sort of) people to do something they wouldn’t do if you paid them a whole lot more than what they’re getting paid now."

    It's actually not unusual, if you refrain from selectively disregarding all the relevant data points. You've compared apples and oranges here, and completely ignored the many, many university professors who find themselves in the very "unusual" position you describe law professors to hold. I suggest looking at MBA programs, and medical schools, for starters. If you choose to compare law school professors, who are professors within a professional school, only to those university professors occupy professorships outside of professional programs, then of course their position will look unusual. If you start comparing them to their actual counterparts, their position looks quite typical.

    Not that I should've expected high-quality analysis, given your track record....

  27. I would add that, though one may feel more sense of commitment when doing them, legal aid jobs are no walk in the park either.

    The comment on the strange conjunction of boredom AND stress in law jobs is so apt, I can't improve on it.

  28. Anon at 8:15, it's probably true that business school professors don't actually run businesses, but business school is pretty much a scam in the same way that law school is a scam. A fair amount of medical school professors actually practice medicine, so I don't know what you're talking about. All your comment tends to do is attempt to persuade Lawprof that the problem he's identifying is more widespread than just law schools.

  29. Medical schools and their faculties are often mentioned in discussions of how out-of-touch law school professors are with the practice of law. That criticism is incomplete without exploring how medical school faculties are organized. There are two major groups: basic science professors who possess PhD degrees and clinical faculty who have MD or DO degrees. The basic science faculty teach classes like biochemistry and pharmacology. The clinical faculty teach in some lecture classes but earn their pay mainly by practicing medicine while teaching/supervising medical students and residents. In terms of pay, the clinical faculty do much better than the basic science faculty because their pay is based on the revenue they generate from practicing medicine. The basic science faculty, however valuable they are in supporting the educational and research goals of the school, must accept that they are not physicians and live on the pay their professional background entitles them.

    If medicine were taught the same way as law, students would be taught about diabetes by a biochemistry professor who has a deep theoretical understanding of diabetes but doesn't have a clue about how to treat a patient with a blood glucose of 600 (FYI- 600 is REALLY high). What makes medical school different is that students are exposed to the biochemistry professor as well as practicing physicians who carry the similar academic title. Clinical faculty teach what to do with high blood glucose along with managing the other nuts and bolts issues that distinguish the active practitioner from the pure academic.

    Law schools deny the obligation to teach anything beyond the equivalent of what the basic science faculty teach medical students. Claiming education that includes practical knowledge is below the standing of such a learned professoriate is a defense strategy to deflect attention away from the law faculty's lack of real-world experience. Law schools could do better by organizing their faculty into a cadre of academics with cursory practice experience who teach 1L classes and another group of professors with significant practice experience who teach 2L and 3L classes.

  30. Greаtе аrticlе. Kеep poѕting such kіnd of information on your sitе.

    Im really impressed bу your sitе.
    Thanks foг shаrіng yοur
    thoughts on kеyword. Regaгds

    Ηerе іs mу blog post: guaranteed payday loans
    Review my web blog ; guaranteed payday loans

  31. Hello i am kavin, itѕ my fіrѕt time to cоmmenting anуplaсe, when i reaԁ this paгagrаρh i thought i coulԁ alѕo
    mаkе comment ԁuе tο thiѕ sensible агtiсle.

    Feel frеe to vіsit mу web-sitе - quick payday loans
    My web site :: quick payday loans

  32. I cоnstаntly emaileԁ this blοg ρost
    pagе to all my contacts, as if like to read it thеn my
    links will too.

    Loοk at my web blog - quick cash loans

  33. Hi there to every bodу, it's my first go to see of this blog; this web site contains remarkable and truly excellent data designed for readers.

    Feel free to surf to my homepage :: losing weight


Note: Only a member of this blog may post a comment.