Monday, October 24, 2011


(1)  There's an old fable about several blind men and an elephant. One man grabs the elephant's trunk and thinks it's a rope, another feels its legs and thinks it's a tree, etc.  I've been struck by how certain people like to insist that the "real problem" with legal education and the legal profession is X not Y or Z. The real problem is transparency about employment numbers, or it's educational debt, or it's the supply/demand mismatch for new attorneys, or it's that law faculty know nothing about being lawyers, or its the practical uselessness of law school, or it's that so many lawyers hate their jobs.  Why one of these things is supposed to be the "real" problem puzzles me, especially given that obviously they're all important issues, and indeed all inter-related to a significant extent.  Indeed they could all be re-characterized as different facets of a single elephantine problem.

(2)  George Orwell, c. 1939:

In a prosperous country, above all in an imperialist country, left­wing politics are always partly humbug. There can be no real reconstruction that would not lead to at least a temporary drop in the English standard of life, which is another way of saying that the majority of left-wing politicians and publicists are people who earn their living by demanding something that they don't genuinely want. They are red-hot revolutionaries as long as all goes well, but every real emergency reveals instantly that they are shamming. One threat to the Suez Canal, and ‘anti-Fascism’ and ‘defence of British interests’ are discovered to be identical.
I wonder the extent to which this insight would apply to legal academics, assuming for the moment that internal attempts at reform were to get to a point where they appeared to be threatening the current standard of living of law faculty? (Needless to say at present this is a purely hypothetical situation, but even as a hypothetical it's disturbing enough to the status quo to engender hysterical denials when anyone suggests that genuine structural reform is necessary).

In other words any sensible reform of legal education would lead to law faculty working more, or at least working more in ways that actually lessen the cost of legal education, such as teaching more classes, while getting paid less.  Since as a matter of short-term self-interest no individual faculty member desires these obviously horrifying outcomes, the only ways to get law faculty to consider implementing such changes are to appeal to longer term self-interest (accept somewhat painful reforms soon or have more painful ones -- such as unemployment -- imposed by external economic forces later), and to moral suasion, by pointing out that our self-interest is currently at odds with our ethical obligations to our students.

(3)  I had a long chat last week with a journalist for a national publication regarding this blog. She was curious about, among other things, what inspired me to start the thing in the first place, what I was trying to accomplish, and how long I planned to keep going.  She assumed I had planned the blog for some time before launching it, when in fact I started it an hour after getting the idea.  This piece of information seemed to take her aback a bit, and she asked me if I ever regretted starting this blog.

The answer is that of course I regret starting this blog, at least a couple of times every day.  This blog certainly isn't good for my "career" in conventional terms, to put it mildly.  And then it struck me that the only reason I've ever written anything worth reading is because I've never bothered to think strategically about whether it was a "good career move" to say this or that in print.  This has led me, inevitably, to say things in print that I later regretted for their tone, and even occasionally for their substance.  But I'd rather make those sorts of mistakes than spend my life censoring myself on the basis of whatever career fantasy I had at the moment.  How many legal academics have kept their mouths shut over the years because they considered how X would sound to the ears of this or that hiring committee, or worse yet to the Senate Judiciary Committee?  (The fantasy of a federal judgeship, or in its most florid form a SCOTUS appointment, is a very common one in our little corner of the world).

The intellect of man is forced to choose
perfection of the life, or of the work,
And if it take the second must refuse
A heavenly mansion, raging in the dark.
When all that story's finished, what's the news?
In luck or out the toil has left its mark:
That old perplexity an empty purse,
Or the day's vanity, the night's remorse. 



  1. lol @ some tier 2/3/4 professor getting a federal judgeship.

  2. I'm glad you started this blog. As a practitioner who graduated law school 10+ years ago, I doubt I ever would have become aware of the terrible bind so many current students and recent graduates are in, if the posts and comments here had not opened my eyes.

    I believe the situation will improve when the edu-bubble bursts, and possible sooner if the civil suits make progress.

    Regarding federal judgeships, that's a common fantasy among practitioners, too. I chalk it up to the grass-is-always-greener syndrome.

  3. 9:43 - it happens occasionally. See Jay Bybee of the Ninth Circuit - former professor at LSU and UNLV, both T2 schools. However, Bybee - probably like most T2 federal judgeship appointees - was well-connected and had spent time at OLC.

    (BTW: per 9:54's comment - I'm not sure why federal judgeships should merely be a "fantasy" - obviously, it does happen for a number of people. Winning the lottery is a fantasy. Becoming a federal judge, for a well-placed practitioner or academic, may be a "reach" goal that involves some elements of luck, but is not so far from the realm of plausibility as to be a "fantasy".)

  4. I agree that there are many different interrelated problems, and that professors (like everyone else in the world) will tend to view those problems through their own self interest. But at the risk of identifying a particular "cause," I think that both lawyers and legal academics greatly underestimate the impact that technology and globalization have already had on law practice--and how those forces are accelerating (not just continuing) every year.

    I would encourage academics to take a new, very objective look at how law is practiced today and how it will be practiced over the next five years--the pace of change is rapid enough that it may be hard to project further than that into the future. We also need to figure out how to create educational institutions that can constantly adapt to market shifts. That will be a real challenge! But the elephant we're touching isn't just an animal we can't see--it's a shape-shifter.

  5. Thanks for doing this blog. Your response on why you do this blog is very telling and it is someone rare who is willing to stick his neck out. You are taking shots from the legal academy. Unfortunately some of the more radicalized students see you as "the man" so you are taking shots from there as well.

    The real problem?

    Transparency about employment numbers

    While it is a shame that schools continue to publish bogus numbers, there is plenty of information out there on how bad they are. Even a well informed consumer would have a hard time making an informed decision in today's economic climate - even if all the numbers were correct. And "correct numbers" are probably not attainable anyway.

    it's educational debt

    DING! The more I read, the more I am convinced that it is student loan availability that is the root cause of the problem. No loans = no tuition increases. I would "rough guess" that 80% of graduates would be eligible for IBR. It's not sustainable but the "treasury subsidy" of law school - it could be go on for a quite a while.

    it's the supply/demand mismatch for new attorneys

    That's an ongoing problem that is just much worse now.

    it's that law faculty know nothing about being lawyers, or its the practical uselessness of law school

    That's an old issue and in my opinion, pretty meaningless. Most professional schools (except health) actually do fairly little to prepare students for day to day reality on their jobs. However, with technology, a lot of this stuff is changing.

    it's that so many lawyers hate their jobs.

    That is not new.

  6. @9:58 -- I was using the term "fantasy" only because LawProf used it in the post. I didn't mean to suggest that the becoming a federal judge is necessarily implausible. What I had in mind (and what I suspect LawProf had in mind) was "fantasy" in the sense of an alternative career that people daydream about.

    But why a law professor would want to exchange his/her cushy job for the pressure and heavy workload of a judge is beyond me.

  7. Since when did "cushy" or "cush" become part of the lingo of young people? It's so 1940s. I only hear law graduates on blogs use that term. I never hear anyone else under 50 saying that.

  8. "See Jay Bybee of the Ninth Circuit - former professor at LSU and UNLV, both T2 schools."

    Wasn't he that controversial judge?

  9. "But why a law professor would want to exchange his/her cushy job for the pressure and heavy workload of a judge is beyond me."

    Good question. Certainly tenured professors at higher ranked law schools have higher salaries than federal judges -- sometimes twice as high. They have vastly more control of how much work they do, when they do it, and especially what that work consists of (The idea of being an appellate court judge sounds horrifically boring, but I suppose there's no accounting for taste in these matters. Being a trial court judge would be more fun but this benefit would be offset by a more grueling schedule).

    What federal judges have going for them relative to being a law prof are

    (a) Real power; and

    (b) Great pension benefits.

    On a related note there was a funny little controversy a couple of years ago when CJ Roberts was complaining to Congress about federal judicial salaries, and Posner (of course) pointed out that literally no federal judges ever quit to return to law practice, suggesting that raises for judges were completely unnecessary.

  10. 12:29 - yes, he was/is

    11:21 - thanks for clarifying; sorry I misunderstood you. I believe LawProf answered your question succinctly with "real power." To use a few more words: federal judges write important decisions (many of which will be read broadly, unlike virtually all law review articles) that have serious real-world consequences. Most of what academics write will be read by only a few people in their academic niche and will have almost no real-world impact. I think it's perfectly understandable why some academics who are disposed to work hard would be quite interested in making the switch.

    But then, I did a double-take when I read LawProf's view that appellate judging would be "horrifically boring." I'm a former COA law clerk who can't imagine a more amazing job than being a federal appellate judge. De gustibus.

  11. You are doing the right thing by writing this blog. Thank you for doing it. While interviewing someone last month for my alma mater, a first-year school, I openly told him that I would write him a good recommendation but that he should read this blog and then not apply. I am dead certain that he will not heed my advice, but at least I tried. At least you are trying as well.

  12. ahem, "first-tier".

  13. I was a clerk to a Federal District Judge who sat sometimes on the Ninth Circuit. I have also been an Judge Pro Tem on the Arizona Court of Appeals and several times served as Special Master for the Superior Court. And, I have been a law professor and lawyer for the rest of my life until I retired. In my opinion, each job has different high spots, but I am clear that the most powerful job is the United States District Judge. Very little of what they do is subject to any effective review since appeals cost money and lots of time, thus only a very small percentage of the matters ever get reviewed. District Judges can do things that nobody else in the country, even the President, cannot do. Our history is replete with evidence of their power. If you want to have and exercise power, the United States District Court is the place.

  14. God damn I hate you, you sniveling whiny son of a bitch.

  15. Here is the future of big litigation. There are even firms now that are employing lawyers to work on these kind of document review jobs for law firms on a contract basis. This is one of the highly disruptive technologies of our day and one reason why there are no doc review jobs today and will not be any in the future. Baker and McKenzie.pdf

  16. I remember Demosthenes as having something rather more in the way of variation to his rhetoric.

    Anyway, I really hope you keep this blog up. I'm sure you've read the stories of some of the people currently struggling in this job market - I thought I'd had a hard time with my 300+ job application before finding work, but there are folks claiming to have made in excess of 1,000 with nothing to show for it.

  17. I'm waiting for South Park to do an episode about the whole law school fiasco if they haven't already.

  18. Posner (of course) pointed out that literally no federal judges ever quit to return to law practice, suggesting that raises for judges were completely unnecessary.

    Of course! ;-)

  19. On deregulation see:

  20. Luttig quit to become general counsel at Boeing. Paul Cassell and Michael McConnell quit to go back to being law professors. Deanell Tacha quit to be dean at Pepperdine.

  21. Please, please remember that part of the "real problem" is that law reviews are run by students instead of being peer reviewed journals. Sure, it's not as BIG a part of the elephant as some of the other things, but it's a VERY stupid part of the elephant. It results in shoddy scholarship and increases the institutional pressure for law school to go for 3 years (instead of a cheaper 2 years).

  22. Justice Curtis quit. He was never satisfied with his salary, and Dred Scott clinched it. After returning to private practice in Boston, he earned approximately $650k between 1857 and 1874, when he died. This equates to over $38k/year (and I don't know he worked until his death), far more than his $6.5k salary as a Supreme Court Justice.

    That said, Roberts and any other federal judge is free to retire at any time (and with full pay in many cases) and let in new blood.


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