You cannot be serious

I've been reading Brian Tamanaha's forthcoming book, Failing Law Schools. It does an excellent job of describing how and why American law schools are a mess, and of detailing the historical process by which we got to where we are today.  One of the many things I've learned from it is that a number of the criticisms being leveled at legal education are literally more than a century old, as are the responses to those criticisms.

For example, even at the beginning of the 20th century a lot of people were arguing that a third year of law school was unnecessary. In fact at that time many law school programs were two years; the AALS, which was formed in 1900, pushed successfully to require a third year as a condition of membership. Keep in mind that at that time few law schools required an undergraduate degree as a prerequisite for enrolling, so in effect over the course of the first couple of decades of the 20th century the ABA and the AALS managed to increase the number of post-high school years of schooling necessary to become a lawyer from two to seven. (A key justification for this sudden creation of much higher regulatory barriers was to make it more difficult for "undesirables," i.e., men from working class backgrounds, recent immigrants, Jews, etc. to become lawyers).

In any case the arguments about the third year of law school have hardly changed since then.  People point out that the third year in particular adds almost no value in regard to preparing people to become lawyers, and defenders of this enhanced revenue stream educational requirement respond that we're not just or even primarily teaching people to practice law:

Some assume that the goal of a legal education should be to teach people practical skills so that when they leave law school, they can start practicing law like a pro. I don’t agree. . . .We are training people who will be in profound positions of power—future lawyers, judges, politicians, policymakers, and so on. It is important for all of society that these individuals be given a legal education that consists of more than just taking a few key classes and rushing off into the practice of law. Law school is, for many, one of the few times that they reflect more broadly on the law, on justice, on how the law ought to be, on what works and doesn’t work well in the legal system. It is a chance to learn about the history of law, the philosophy of law, law and literature, law and sociology, law and economics, and more. I believe that these things make students be better lawyers—wiser, more creative, more well-rounded. When we train lawyers, we’re training people who will be shaping our society, and I think it is imperative that their legal education be a robust extension of a liberal arts education, not simply a trade school education.

Back in the day, I used to love to watch John McEnroe play tennis. Besides being a genius with a racket, McEnroe was prone to spectacular explosions of bad temper whenever he believed a bad call had cost him a key point. On one infamous occasion he threw a tantrum on the hallowed grounds of Wimbledon's Centre Court. You cannot be serious, he screamed at whatever prim and proper linesman had earned his wrath.

I sometimes toy with the idea of putting together a collection of quotes from legal academics under that title.

Really, what is the point of detailing what's wrong with this kind of thing?  As Louis Armstrong is supposed to have said when asked what jazz was, "if you gotta ask, you ain't gonna know."

What the heck:

(1)  The overwhelming majority of lawyers never come anywhere near "profound positions of power," even if (absurdly) one counts everyone in a judicial or political or other policy making position in that category.

(2) Very few people spend much if any time in law school "reflecting more broadly on the law, on justice, on how the law ought to be, on what works and doesn’t work well in the legal system."  They spend their time trying to learn how to run largely irrational bureaucratic mazes, in the form of arbitrary testing regimes that feature zero feedback and don't test what anyone has learned about the efficacy or justice of the legal system.


(3) Nor, with rare exceptions, do law students "learn about the history of law, the philosophy of law, law and literature, law and sociology, law and economics, and more."  They learn some (again largely arbitrary) gobbets of legal doctrine, with a farcical patina of something called "policy analysis" thrown in.  Yes I'm sure Stanley Fish's Yale Law School seminar on the history of the first amendment is an intellectually serious enterprise. I'm also sure that seminar has about as much to do with the typical law school class room as Warren Buffet's tax return has to to with mine.


(4)  It's possible, though far from self-evident, that a legal educational program dedicated to a serious inquiry into the sociology, philosophy, economics, literary aesthetics etc. etc. of law (all in three years; if you act now you'll also get this handy paring knife) would "make students be better lawyers."  Since law school has almost nothing to do with any of that the proposition hasn't been tested.


(5) "When we train lawyers, we’re training people who will be shaping our society."  This belief is the root of almost unlimited nonsense of all kinds.  I had the unfortunate experience recently of re-reading the joint plurality opinion in Planned Parenthood v. Casey, and was once again reminded of what law school actually produces is megalomaniac grandiosity among our legal elites.  For those who haven't read it, that opinion -- which occasioned veritable ecstasies of praise from all sorts of legal academics at the time -- asserts (I am not making this up) that Americans need to stop arguing about whether abortion should be legal, because the Supreme Court has resolved the issue. Furthermore, it has resolved the issue by figuring out the answer to the following question (I quote almost at random -- this is far from the most ridiculous thing in the opinion):

Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.

If you can read Casey without noticing that it's nothing but a rhetorically unhinged exercise in begging the question, or that you have to be at least a little bit crazy to believe that you, personally, are morally and intellectually qualified to "define the liberty of all" then I suppose you have what Thurman Arnold referred to sardonically as "a legal mind."

And what's more than a little bit crazy is to believe that law school, of all things, has qualified you to perform this impressive feat. Indeed an opinion like Casey reads like a parody of traditional law school classroom discourse, with its pseudo-oracular pomposity, its authority-based question begging masquerading as "reasoned argument," and most of all its willingness to "speak extensively about matters about which one is to some degree ignorant."

At the root of the absurd structure of legal education is the idea that "we" are training people to be future Supreme Court justices and the like, and that our training adequately prepares these people to do things such as "define the liberty of all" in regard to the most profound moral quandaries.  Which of these beliefs is more delusional is a matter of institutional context (if you teach at Harvard or Yale the latter clearly takes the cake), but they're both, at bottom, basically nuts.  And the problem, as Tamanaha's book so clearly demonstrates, is that maintaining these delusions has become in every sense far too expensive.