Thursday, December 15, 2011

Stanley Fish, Superstar

I’ve been a big admirer of Stanley Fish’s writing since my undergraduate days 30 years ago.  Since then I’ve gotten to know him a little bit – we’ve spoken on the phone occasionally and had dinner a couple of times, and he provided a blurb for one of my books in my younger and more vulnerable years – and he remains one of the three smartest people I’ve ever met.

So I read his New York Times piece on teaching law with special interest.  Fish’s main point, that “law is surely a practice but it is also a subject, and if it ceases to be a subject – ceases to be an object of analysis in classrooms and in [the academic literature] – its practice will be diminished,” is in a sense wholly unobjectionable.

Any social practice as pragmatically important and morally and politically fraught as law will, by its nature, always be an important subject for academic inquiry.  And that sort of inquiry, as Fish points out, “is reflective . . . It is developed not on the wing, but in a course of study. It is academic knowledge in the best sense, knowledge that becomes yours by [among other things] pondering abstract, hypothetical questions.”  Law, in other words, is a subject that ought to be studied in universities, by people who are seeking knowledge for its own sake, rather than pursuing some more immediate practical goal.

So far so good.   But Fish’s argument goes much further than this.
Reduced to its essentials, Fish's argument appears to be that the impractical, supposedly "theoretical” nature of contemporary American legal education is a good thing, because law schools are and should be fundamentally academic institutions, rather vocational training programs. 

Thus if the students in his Yale law school class on law, liberalism and religion spend much of their time reading Locke, Hobbes, Rawls, Kant, Unger, Rorty, and Berlin, rather than merely parsing the doctrinal niceties of the Lemon test or Smith v. Employment Division, this is as it should be.  They are learning to think deeply about difficult legal -- which is to say historical and political and moral and philosophical -- questions, rather than learning the practical aspects of the trade plied by the three lawyers in America who make their living arguing about establishment and free exercise clause questions. And learning to think deeply about law is an important and desirable trait for people who are going to be lawyers.

In other words, Fish is saying the Yale Law School, where most students spend no time learning how to draft and file a motion, and lots of time grappling with difficult historical, political, moral, philosophical questions as those manifest themselves in an explicitly jurisprudential context, is A Good Thing.  And, as I’ve said before, I agree with that.  I’ve got nothing against the Yale Law School.  I’m sure the students in Fish’s class got a lot out of it (I would, sincerely, have loved to sit in, given that based on the evidence of his writings and lectures Fish must be a terrific and entertaining teacher).

So what’s the problem? It’s this: Fish thinks that law school as it is currently constituted in America should be a species of liberal arts education.  Now again, I hasten to add that I’m a big fan of the liberal arts, and that I agree with Fish that the current widespread attacks on liberal arts education represent a very bad cultural development. I’m all for good liberal arts education.  I deplore the anti-intellectualism manifested by such things as John Roberts’ recent faux-populist attack on “impractical” scholarship.  But here’s something else I’m against: requiring people to pay for seven years of post-secondary school liberal arts education before they can acquire a license to practice law.

Learning to think deeply about law is a skill and habit that future lawyers should be given every chance to acquire – as undergraduate students, studying law as a subject of concentration in a general liberal arts degree program.  Postgraduate legal education for future lawyers should consist of vocational training that takes place in explicitly vocational contexts, such as supervised apprenticeship and externship programs.  (This “radical” idea represents the structure of legal education in just about every other country in the world).

So where does this leave the Yale Law School, not to mention the various other law schools that have in recent years imitated Yale’s graduate school model of education with greater and lesser success?  There would be room in both the academic and legal hierarchy for a certain number of such schools.  They would have two ongoing purposes: training the next generation of legal academics (except almost all these people will go on to teach in undergraduate programs rather than “law schools,” which under this model would mostly cease to exist), and providing a mechanism for further social sorting, which could be employed by those high status legal institutions that wished to restrict their hiring to people who had enough time and money to spend a lot of both pursuing formal education beyond their undergraduate years.

What such programs – there might be ten or twenty – would not do is provide anything that would be a prerequisite for practicing law. 

Now I admit this model seems, on its face, horribly elitist.  Why shouldn’t all future lawyers get the benefits of something as undoubtedly intellectually valuable as Fish’s Yale seminar?  Why should we have two different castes of legally trained people – the vast majority who have an undergraduate degree in law followed by a formal apprenticeship, and a small subgroup who would have gotten the equivalent of a Ph.D. in jurisprudence?  Shouldn’t everyone drive a Lexus rather than a Corolla?   I’ll address that question in my next post.


  1. I say we just create a rule that nobody from Yale is allowed to comment on legal education. With their 100% employment rates - almost all in top jobs - they are disconnected from reality.

  2. As a practicing lawyer dealing with "vocational" problems everyday (such aheh ow do I comply with TN's new med mal statute or how many times must I attempt service before I can serve by publication or what I need to show to gain a permissive interlocutory appeal), I say "Bravo" professor! I don't doubt that Prof. Fish is brilliant, but I doubt he has a clue as to what I, a 25-year practicing lawyer, must do on a daily basis. However, what I do is what most practicing lawyers must know how to do. Practical skills aren't intellectually sexy, Prof. Fish, just necessary.

  3. Profs like Fish want all of the perks of being a liberal arts professor with none of the drawbacks. They enjoy the academic lifestyle without having to deal with those other pesky issues. Yes, a history Ph.D. spends his research and writing time on topics that are impractical, but he doesn't make that much, he teaches more than three classes a year, he has to do to serious peer-reviewed research to get tenure, and he went through a rigorous program to teach him how to research, write, and teach.

  4. It's an interesting idea, up to the point in which you say that those remaining elite schools "would not do... anything that would be a prerequisite for practicing law." Why is that part necessary? I don't understand why people who want to practice can't go for the Yale model. The fact is that many people who go to Yale, and other peer schools, do practice law. Lots do. They are in firms and in-house counsel. They are in government law positions; federal, state and local. If you consider all the schools together, say the top 14, that amounts to a lots of people who, under your system, would not get the benefits of whatever these schools are currently doing to turn out practicing attorneys.

  5. "Yes, a history Ph.D. spends his research and writing time on topics that are impractical, but he doesn't make that much, he teaches more than three classes a year, he has to do to serious peer-reviewed research to get tenure, and he went through a rigorous program to teach him how to research, write, and teach."

    Exactly 7:52. Law professors like Leiter (and perhaps Fish although I don't know anything about Fish) who became law professors because they couldn't get jobs as humanities professors, or because they didn't like the pay of humanities professors are being nothing but opportunists who have contrived a way to steal money that they do not deserve under market conditions.

  6. 7:55: Under this reformed system people who wanted to practice law would be perfectly free to go to legal graduate school. Such people would either *already* be qualified to practice law (if they had already completed their post-undergraduate legal apprenticeship) or they could apprentice after legal graduate school. In fact I could envision a system in which the Yale-style schools would at least informally require people to practice law for a couple of years before being admitted, in the way I'm told some top business schools prefer a certain amount of real life experience in the business world in their MBA applicants.

  7. That's interesting I'll have to take a note to research Fish more.

  8. 8:09: Fish was a superstar in the world of literary studies long before he got mixed up in the law school rackets.

  9. Okay, I get it. But you cannot think about this solely in terms of fixing the problems that exist at this particular moment, what's on the horizon for the next 5 years. If you are seriously thinking about the law school of the future, you have to think beyond the American economic structure as it exists today. Also, the grass is always greener on the other side. Consider this except from an article in the Financial Times.

    "It is this army of new lawyers in India and beyond, that may yet shape legal education in the west. For Prof Savage at the College of Law, it is imperative that UK law schools compete at the same level as American ones in order to safeguard the UK’s importance as one of the world’s pre-eminent legal centres.
    “Young lawyers today who may be qualified in their domestic jurisdiction aspire to become ‘global lawyers’ and they know that in order to do that it helps to qualify as English or US lawyers,” Prof Savage says. “They will shop around for the best jobs and for the more accessible of the two global qualifications.”
    For now, he argues that the US system wins because of its accessibility, and unlike the UK, there is no requirement of a training contract in order to become an attorney. Scrapping a training contract and making law school more vocational may seem revolutionary, but an overhaul of the way law is taught may be necessary in order to appeal to the new world order."

    There is also some consideration in France of moving away from the undergraduate model as it exists now. Before we jump on a bandwagon, we need to see how people who are already on it feel about it.

  10. Shark Sandwich has bingo.

  11. Any comment on the Above the Law story on the practice of reusing exam questions?

    As a student this is one of the most frustrating things to find out about law school.

  12. Correction 9:19, it's only frustrating for those suckers who thought exams were "fair" and so they wasted time reading cases rather than neve opening the book, getting the right outlines and practice problems from last year and gaming it.

  13. 9:19: That's unpossible. Law professors are extremely hard working. Extremely hard working people could not possibly be lazy enough to recycle exam questions. QED

  14. What does one teach in a new law school for the masses, as opposed to the elite 10 or 20 schools designed for those who would wallow in "deep" questions? Skills training (including practical ways to understand and apply doctrine) actually can be more radical than self-consciously reflective training in "big questions." How so? By treating law as a mere technique (which by and large lawyers treat it as) for accomplishing this or that material end of a client (*any* client)one strips away the pretension that the existing legal system and its effects are just, right, good, etc. Law training becomes like training in shooting a gun, and no one would think that a gun cannot be used in awful ways (I assume even the NRA would agree with this proposition). The difficulty comes when the law-teacher-for-the-masses explicitly or implicitly naturalizes and valorizes existing arrangements as for the most part just and right and good. This is how academic law was taught for most of the 20th century until CLS came along to demonstrate 2 points, among others: (1) law as it is or might be is *always* political, i.e., a venue for struggle over differing visions of the right and good; and (2)legal skills training could be done with a lot less pretension and with greater effect than we presently do it (see Duncan Kennedy's "Legal Training as Reproduction for Hierarchy"). I have no problem in principle with Campos's proposal, but I *would* have a problem with it if the law-school-for-the-masses became a factory for producing clones who are indoctrinated into thinking that the status quo in law and legal practice is pretty much ok as it is. So I ask Professor Campos to explain how his proposed solution to the problem of legal education can avoid the inherently politically conservative implications of stripped-down craft training in legal categories that, after all, *say* they are about rights, duties, justice, due process etc., and therefore *pretend* to express neutral truths about those concepts.

  15. Academics don't like the "practical nature" of vocational training because they don't want to get their hands dirty with the nitty-gritty of real world applications. It is far easier to pontificate and inject opinion than actually do something.

    Law school faculty have are the academic equivalent of a consulting firm. They sweep in, critique, and never stick around to actually find out if their suggestions actually worked.

  16. Fish takes the view that law fits within the liberal arts, though on many campuses pre-law advising is controlled by poly sci professors who view court decisions though the lens of various "actors" trying to influence each other and the legislative and regulatory playing field.

    Alternately on some campuses pre-law advising is heavily influenced by the criminal justice department, which is the most successful child of sociology, and another social science.

    In Colleges with a business undergraduate major, or an MBA program, law is studied as a adjunct to the business process.

    Finally law on campus is often influenced influenced by the career counseling department. Which brings attorneys to campus to tell undergrads what a wonderful career the law is.

    I think law on campus should be taught using the pre-med model and have written the newly installed President of my old liberal arts college. Asking her, for the sake of their undergraduates, to consider hiring a couple adjuncts to teach one or two simulated first year law school classes each year (with a mandatory curve) so that students who want to go to law school will be able to predict where they will end up in their future law school class rankings before they spend over a hundred thousand dollars, to find whether an employer will consider hiring them based on their law school transcript.

    In conclusion, as much as Fish would intellectually wish to anchor the study of law as a subject matter in the classic liberal arts, at colleges and universities, the territory has already been divided among the poly sci, business, C.J. and career services people.

    Samuel Browning

  17. I have but one small point too add. Those who attend the top schools have a plethora of post law school opportunities in which to gain real-world training in the practice of law (clerkships, Big Law, etc.). Those who attend the lower ranked schools do not enjoy such opportunities. Thus, the Yale model cannot be compared to that of a 3rd or 4th tier US law school in this instance. For those students attending the lower ranked schools, the educational experience essentially terminates upon graduation. And, therefore, the benefit of a more vocational training program would make sense. Get these people ready to enter the workforce, with the skills they need to do so.

    Just my two cents.

  18. @ Crux of Law. I agree with your point about opportunities for those who attend top schools, but I would add that the opportunities rapdily fall off as you go down the list past HYS. You shouldn't draw a line at 3rd or 4th tier, when you can easily find numerous people from top 10 schools, and tons of people from top 14-20 schools who have limited opportunities. Ask around USC, UCLA, or even NYU, Penn, or Northwestern after OCI--the bottom 50-60% probably don't have great opportunities. So I would posit that the opportunities available for law students rapidly fall off well inside the so-called "first tier" schools (the top 14).

  19. I would also say that class size has a large effect on opportunity. Yale and Stanford have less than 200 students matriculate each year. Harvard has over 500, so you can probably find numerous Harvard law students who have struck out. Same thing for NYU.

  20. What do you mean by "struck out"-- they never get jobs?

  21. Yes--FYI--plenty of people from T3 schools "strike-out" and don't land biglaw, clerkships, or even small law. This is especially the case for students at the bottom of their class.

    Go talk to any recent Stanford or HLS alum, they all know people who either aren't working, or who are employed by their respective school. Further down the T10 it gets worse, especially at schools like Michigan or Virginia--T10 schools in big classes, but who aren't located in big job markets. The lack of jobs for UVA students is a running meme on campus.

  22. 10:45 is right, top schools (although not U of Chicago as we saw in their fantastic disclosure as highlighted by ATL), but any way top schools lie about their placement just like low ranked schools. Low ranked schools turn an effectively 25% employment rate into a 90% rate, and top schools turn an effective 50%-75% employment rate into a 99% employment rate.

  23. Word of mouth at the end of the school year for HLS 3Ls graduating in 2011: as many as one-fifth (around 100 students) of the class still lacked any kind of employment.

    I am sure the majority of them found something eventually, but still. As late as April 2011, one-fifth of them had absolutely nothing lined up.

  24. Word of mouth is that they did find jobs.

  25. everybody wants to trade up in schools, thinking it will make a huge difference, but chances are that it won't. every kid going to loyola wants to go to UCLA or USC, thinking if that they attended USC instead of loyola they'd have a job--the reality is that going to USC may marginally improve the chances of landing a job (and I mean marginally improve 1-2% chance), but the most likely scenario is that they would still be unemployed. trust me--I graduated USC in '08, haven't worked at a law firm or found a non-contract job yet--grades were decent but not spectacular

  26. "I *would* have a problem with it if the law-school-for-the-masses became a factory for producing clones who are indoctrinated into thinking that the status quo in law and legal practice is pretty much ok as it is."

    I would say that's an accurate description of almost everything that goes on in the contemporary American law school. If the justification for a post-graduate model of legal education is that it's more likely to take a genuinely critical rather than a reflexively legitimating perspective on the legal system then then that justification almost always fails in practice.

    Indeed I believe an undergraduate model for legal education is *less* likely to be as invested in legitimation than the current model is, since undergraduate programs are less likely than law schools to see themselves as integral parts of the legal hierarchy.

  27. It would be interesting to see what moving preparation for law school into undergraduate programs would do. I have a feeling that if we think getting into college-- the right college-- is competitive now, this would kick it up even more.Maybe that would be good.

    I don't see why undergraduate programs that are explicitly designed to prepare people to be a part of the legal system would not, over time, come to see themselves as part of the legal hierarchy. HYS colleges would take the place of HYS law schools, and so on down the line. Where you go to college would become even more important. Right now, folks who go to non-elite colleges, and do very well, can go on to HYS, or other peer, schools. Now, as it is in England, what school you go to at what we would call the secondary level, would become that much more important. It would be interesting to see how this would work itself out.

  28. 9:42 here, responding (in some sympathy) to Professor Campos's post of 11:29. I agree that law schools as currently taught are legitimation machines *for the most part*. Every now and then a critical teacher (usually an aging one) tries to deconstruct the law's pretensions to neutrality (have you noticed how new hires these days seem to be reverting to the old legal formalism game, with rare exceptions? It makes faculty colloquia pretty boring; I can't imagine how it makes law students feel). Still, the point remains: skills training verges on legal formalism (and hence reinforcing the status quo) unless there is Fishian-type "perspective" offered every now and then. I guess what troubles me about your proposal is that it comes close to echoing Dean Carrington's call for "crits" of all types to leave law schools and teach in sociology/philosophy/etc. departments. Is this what you want to happen in the law-school-for-the-masses model? Will skills teachers in that model be forbidden from criticizing doctrine and practice (or for that matter praising it) from some "external" point of view such as legal sociology, Marx, psychology, etc.? I can't believe you would put tape over these teachers' mouths in this way--if I am right, however, how would you prevent the normative project of commenting "about" law as a subject from becoming the very thing you criticize about law school today? I mean, if a professor says that the equal protection clause as interpreted currently is a tool of oppression because it enacts a contingent and purely formal notion of equality, how is the teacher supposed to let students know about some *other* notion of equality if his/her sole job is to teach skills and only skills? And what are students who learned to be critical of law supposed to do with what they learned when they come to your law-school-for-the-masses? Will they be allowed to raise their hands and quote Marx or Hayek or Kant or whoever against the obvious BS contained in this or that opinion of a court?

    Just asking--again, in all sympathy but with many many doubts and questions.

  29. Today's post and all of the comments are about as useful toward the solving problem this blog started address as the typical law professor lecture is toward getting a new grad ready to practice.

  30. I met an unemployed 2011 hls grad a month ago. she was in my city networking.

  31. LawProf,
    This is totally ridiculous – you’ve jumped the shark with this one. What a bizarre non sequitur!

    Fish argues that a Yale-style education is what all future lawyers should have or at least strive for. If you agree in part, as you say, how do you distinguish who should be admitted to the "elite" schools from the peons that have to go to the damned trade schools? Family wealth? Neighborhood of origin? Career goals? Oh, I’ve got it – maybe the students are supposed to decide for themselves which track “fits” best. As if anyone just starting out in law school has a firm enough grasp of what they want from the profession to commit to an unbreakable path to peonage! So they’ll have to internalize, at an early age, either the view that they’re elite or the view that they’re, unfortunately, peons. What internal criteria do you suggest a 20 year old should use to make that decision?

    Oh, no – I’ve got it now. It’ll be based on their performance on their liberal-artsy college level law classes, right? So in the end you’re suggesting that the gateway to the prestigious end of the legal employment spectrum should be guarded by exactly the same kind of academic requirements – Yale-style ones – that law schools currently impose on their students, except that under your plan, those who make bad grades don’t even get the chance to go to a competitive school. They’ll be resigned to the toilet, to peonage, from the get-go. Nice. What’s the justification – that this is the lesser of evils or that it’s what students “need,” even if they don’t want it? Yeah, those rationales, historically, have always led to awesome results.

    How – if at all -- do you propose that the damned trade school students compete for jobs with the elite grads that have an education resembling what every firm is used to from the last 100 years? I suppose they could offer their services at a sharp discount, cementing (a) their internal assessment of themselves as less-than; and (b) their membership in a lower socio-economic caste.

    You still haven’t answered the basic argument Fish (and the commenter at 7:55) make – Yale has been educating lawyers in this way for a long time; those students tend to have their pick of good jobs; so why, exactly, would students want any kind of education other than the kind that Yale offers? You can’t get away with the false generalization that every Yale law grad becomes an academic or judge (or even wants to be an academic or judge). Even if their only goal is to get a job (which, if that’s all students think about when deciding to go to law school these days, is its own sad development) they should actively seek out Yale-style education, not something clearly and intentionally designed to be qualitatively worse, like your trade school.

    I just can’t believe someone with your supposed scholarly commitments is actually advocating something as horribly degrading, repressive, stratifying, and eventually destructive as this bizarre "plan.” (Your "rebuttal" to 9:42, by the way, is laughable.) Hopefully nobody is insane enough to take it seriously. After this, folks should think twice before crediting you as a reliable source for anything, even criticism.

  32. I think 12:40's comment deserves another LOL from Lawprof. If you want to just deny the signaling model of education completely then you have nothing of value to contribute to this discussion.

  33. 12:54 -- what are you talking about? What "signaling model"? Nobody's denying that degrees signal things. Do you think education is soley about signaling something? Even if you do (wrongly) think that, why are you in favor of this plan? Campos is saying that the vast majority of putative law students should be allowed to go only to schools with zero signaling value.

  34. Although I'm tempted to follow Coder2000's suggestion I'll give 12:40 a real answer. 12:40 (by the way would it kill my fellow legal academics to post under their real names or at least pick a handle?), in my suggested model there wouldn't be any "trade schools." An undergraduate major in law would have no more of a trade school component than any other LSA major. The vocational side of legal education would take place where it can take place far more efficiently than in any university -- that is, in vocational settings, in the context of apprenticeship.

    Graduate programs in law wouldn't be alternatives to the undergrad model. Anybody who majored in law, apprenticed, and passed the bar could practice law. Graduate programs in law would be for graduate students, not people trying to become lawyers. Now it's true a few high status employers might want to hire people who had the equivalent of a Ph.D. in law for the purposes of social signaling, but the top law schools *already* fulfill this function (Speaking of laughable, anybody who thinks top employers hire HYS grads because of the practical value sophisticated theoretical inquiry has for legal practice is, to use the technical academic term, high off his ass).

    What we need is one educational track for people who want to become lawyers, and another for people who want to study law as a postgraduate academic subject. The current system is ridiculously wasteful. It was tolerable when law schools and their associated universities weren't quite so piggish about extracting every last cent out of a system that created arbitrary barriers to entry. It isn't any more.

  35. @ 12:40. Sorry if this is short, clumsy, or otherwise unreadable dreck. I am half-way out the door to pick up my daughter at school.

    In defense of the "trade school" model, the majority of law students in this country cannot go to Yale. They go somewhere else. As they cannot, by definition, get a Yale education, they are then getting something else. The question is what that something else will be. Or, rather, what it has to be compared to what it could be.

    Short of creating different tiers of lawyers (or more), I would like to see something along the lines of an option. Yes, a choice. Aim for the Yale style education, with all it's trappings, or chose another route - call it the "trade school" or whatever - where the student can at least learn the basic skills required to enter into the workforce. Perhaps it could be shorter in duration, cheaper, and the like.

    There would still be an interest in Yale and similar schools. It is still Yale, after all. But, there would be an option for the balance of law students.

  36. Wouldn't it be a tough sell to get the most elite colleges to have something called a law major when they don't have business majors? How would the law major escape the problems that these schools have with business majors-- mainly that it is too much like a trade school, too "ends" oriented for liberal arts? So,HYS and all the peer schools save for would not likely be a part of this, right?

  37. I meant to say, "save for Penn" would not likely...

  38. 1:28: Law is an academic subject in a way that "business" is not. Another advantage of this approach is that people who major in law don't necessarily have to go on to become lawyers. Many, perhaps most, would, but it would be a liberal arts major, not a professional training regimen.

  39. Hmm, I don't think so...It would quickly be seen as a law school track. I can't see any of these schools buying it. It's not like this hasn't been considered before. This been floated in years past and rejected. Why would a university have an incentive to do this now, especially with the revenue structure as it is.

  40. One of the complaints about the European model, from people who are in it, is that students are too young when they start the study of law. Just as we are thinking of ways of doing things differently, they are too-- including finding a way to move it out of the undergrad system.

  41. If not moving it totally out, extending it so that people are more mature when they come to the subject.

  42. What I don't understand is why does it matter whether YLS students learn "to think deeply about difficult legal--which is to say historical and political and moral and philosophical--questions." Aren't a majority of them legacy types and/or very privileged? If so, then why would lectures on those topics be of any consequence, when their real-life perspectives are entirely shaped and limited by their elitist class strata.

    It's both quixotic and self-serving to believe that Fish's lectures will impact this particular class in any meaningful way. Fish would be better off visiting an inner-city school and becoming a reading tutor--it would do more real-life good.

  43. Fish's piece was impenetrable. I still can't figure out what the hell he was trying to say.

  44. Is this discussion for real?

    This whole "movement" thus far is barely cracking the level of getting a tiny bit more graduate employment information out of the schools and you think you're going to totally do away with the 3 year JD graduate education model!

    I really just about shit myself laughing thinking about that. In fact, I don't know about "just about."

    I'm off to the bathroom to check things out.

  45. When I was a third year law student, I definitely had the impression that the thing was artificially extended to raise the minimum age of anyone who would end up with a license. Or, you have to collect a certain number of boxtops to get a secret decoder ring, and the number isn't exactly arbitrary, but isn't really based on the cost/value of the ring either.

    I went to law school to learn how to be a lawyer. This was a huge advantage for me, since from the very first day, I was interested in learning eg the rules of civil procedure: not because it was going to be on the exam, but because clients were going to expect me to know it pretty well when they walked in the door. (I'm not calling the person above who thinks getting an outline and last year's exams is the best way to get over a bad person -- but if he/she isn't acting as someone's lawyer, I'm not sorry to hear it.) Ok, the policy stuff was relevant -- you do have to understand the dynamics of the system -- and fun, but at the start, you have to understand how to give the customers the value they are paying you (a whole lot) to get.

    I think the model in the OP would be a great idea, if we were starting from scratch, or if there was some kind of crisis brought on by the collapse of no less than 100 law schools (which, I suppose, might follow the end of federal loan involvement). Failing that, though, it strikes me as a pleasant fantasy. Not unlike a great many of the policy discussions I sat through in law school . . .


  46. Exactly, CC. A pleasant fantasy and this whole discussion is just like one those useless, but entertaining, discussions.

  47. 2:42: I agree a radical restructuring along these or similar lines will require a combination of a big economic crisis for the present model (which seems bound to happen sooner or later) and a good deal of time to transition from one model to another. But I do think something like this could well come about over the course of the next few decades.

  48. So what does a person who decides at 25 to become a lawyer do in this system, go back to college?

  49. I just love that Fish does not address that his version of an ideal law school reflects some intellectual's version of some kind of platonic ideal while priced at a coldhearted, vocational, extract-as-much-as-you-possibly-can, used car salesman, pay for the rest of your life charges. Interesting dichotomy. Willful ignorance and open hypocrisy are awesome things when you can afford it and when it benefits you.

  50. @2:53 I suggest that you may want to stay off the internet in general and blogs specifically.

  51. Putting aside the undergrad proposal for now, I'd like to propose a more nuanced view of legal education. I think the undergrad idea has some merit (although also some real concerns), but whatever the degree tracks, I think we need to think more about the ingredients that go into educating an excellent, adaptive professional--one who has some capacity to respond to real clients and legal problems after graduation but also has the ability to grow both within an individual career and in response to huge market, global, and technological changes.

    I've taught both clinical and theoretical law, talked with a lot of practitioners, and studied the cognitive science literature on how professionals learn; based on those sources, I think an excellent professional education isn't all one thing or another. It's a mixture of theory, doctrine, supervised practice, feedback, and "skills" training that is far broader than many people realize.

    Both professors and practitioners often talk about skills without breaking that concept down. Many assume that these are technical things that are taught in clinics or learned on the job--and people bicker about which is the best place to learn them. But too often we fail to distinguish among the skills. Are all of them best learned in one way? Do they need to be sequenced in some way? Are skills best taught in isolation or in combination with doctrine or theory?

    The best legal education, I think, would combine all of these facets over time. For example, I think one of the most important steps we could take in law school is having students do client interviews, first with simulated clients and then with real ones, during the first year. This is what medical students do during their first year and it may be more important in forming client-focused professionals than the clinical rotations that take place later.

    I think it's a great idea for law students to take 1 or 2 Fish-like seminars in fields of interest to them. Those seminars do play a role in developing professional expertise. But many doctrinal or theoretical professors don't realize that a lot of "Fish-like" reading, thinking, and discussion goes on in good clinics. In our criminal prosecution clinic, students learn a variety of skills (from mundane ones like how to respond to a discovery request to more complicated ones like how to interview an alleged victim and how to interact with the police).

    But they also read pieces on the theory of punishment and discuss those views--in the context of making their own prosecutorial decision. To me, this is the best of professional education: combining theory, doctrine, and a variety of practical skills. Last year, I saw a facebook post from a student in that clinic saying "best two hours in law school ever--discussing theory of retribution in the prosecution clinic." Excusing for a moment the fact that she was posting during class, I thought that was a wonderful tribute to the way legal education can and should be. (Just to be clear, I'm not praising my own clinic here--I teach a different one.)

    But that type of combo experience happens after a number of other building blocks are in place. The students do learn a number of important things from basic criminal law, even though they couldn't practice law on that basis alone (horrors!). And if they've taken seminars, those experiences can influence their performance in clinics as well.

    Training excellent professionals is very complex; I'd advocate taking a very nuanced view of all the ingredients and trying to figure out the best ways to deliver them. Law schools aren't doing that now--except in bits and pieces--but I'd avoid all-or-nothing reforms. All clinic, all apprentice, or all anything else may be just as bad as all theory. (I'm not saying that LawProf or any particular commenter has advocated all or nothing, but Fish's piece is phrased that way and the danger arises in thinking about these issues.)

  52. I agree with what DJM is saying. In the clinic I took on mass incarceration during 2L year (IMO taught by one of the best teachers I've ever had) we had two class sessions per week where we did everything, including learning the law, discussing ongoing cases, meeting practitioners and policymakers, and talking over theory and policy. We had a meeting each week where we discussed the legal and practical issues involved in our client matters. I worked on larger cases where I sat in on strategy meetings with 10-15 people, each one responsible for a different facet of the case. Finally, I drove to prisons to meet and talk with clients. The whole thing was about 20-25 hours per week and was a 7 credit class.

    I would easily do two of those (meaning I would spend about 40-50 hours in the law school and take 14 credits a semester. Or I would support a system where you would take a clinic and select from 2-3 credit "labs" related to the clinic. For example, if you were in a litigation clinic, you could take Discovery Lab or Trial Practice Lab.

    Now as a 3L, I'm taking your typical slate of classes (Corporations, Professional Responsibility, etc), which I don't attend. I take about 2-3 days before the exam to get an outline and study on that. I am killing time until I graduate. And that's kind of sad.

  53. @315PM: Yes! Just like if you're 25 years old and majored in English, you will have to go back if you suddenly decide you want to be an engineer or a nurse. (I am picking that last example as it is one I actually have some anecdata about--when my definitely-older-than-25 husband decided he wanted to pursue a career in nursing after years in a completely unrelated field, a solid plurality of the students in the classes he took to meet the science prerequisites were second-career folks.)

    Anyway, I'm having trouble working up a whole lot of sad for the imaginary late bloomer who finds himself in this situation. Besides, why would it be a bad thing for that person to have to stop and think before embarking on law training and its attendant nondischargeable debt? Right now, it's the "nontraditional" students (i.e., the older ones) who tend to be the MOST screwed by incurring 3 years of law school debt (on top of undergrad debt), because they tend to have greater financial responsibilities already than do the young 'uns--and they have fewer years remaining in the workforce (assuming they can even get a job, and let's not pretend that law firms don't engage in age discrimination) to pay off that debt before it gets sucked directly out of their Social Security checks.

  54. It is not imaginary at all. There are plenty of people who go law school In their mid -twenties after having completed college. I guess a separate program would be carved out for them to attend the program with the regular college students. Again, it is hard to imagine top schools doing this, fooling with their undergraduate program in this way. But I suppose anything is powwow or if you are talking decades from now.

  55. Powwow is not at all what I meant,-- bad keyboard. Anything is POSSIBLE

  56. Before I forget: In my opinion, recycling exams is a type of white collar crime. Perhaps not literally (although, who knows?) but by analogy as a matter of discipline within the school. Students should be demanding to know what penalty the law school plans to level on Fischel and any other professors who engage in this type of rule breaking and abuse of power.

    With the caveat that I don't know any specifics, I would say that no salary increase for this year is the minimum penalty that would satisfy the deterrent, retributive, and rehabilitative goals of the criminal law. Perhaps the Chicago students could even cite some theoretical works in support of that position? :)

    Plus, the students should be able to choose P or grade *after* seeing their grades on the two remaining questions. They deserve at least that benefit given all the other grief accompanying this. And by forcing the students to make that choice before seeing their grades, the school makes it very easy for Fischel to grade the exams! Anyone who chooses a "P" will just get a quick once over. Way to reward rule breaking behavior!

  57. So tired reading what law profs who have never practiced and who had decades to deal with this issue talk about how schools should work now. You had years to fix all of this and what do we have? This current mess. Hilarious that any of you think you have anything important to say just because of your positions. You are part of the problem and not the solution.

  58. LawProf,

    I like the blog, but this is easily the worst idea you have floated. I encourage you to give it more thought.

    I'm in practice and I will tell you that, in my experience, the following two statements are true:

    1. Law schools teach very little in the way of specific skills or knowledge -- as distinguished from legal writing or reasoning ability -- that is useful to a practicing lawyer.

    2. Most specific skills or knowledge useful to a practicing lawyer should not be taught in law school.

    Your post assumes a tension between these propositions. Allow me to offer some of the reasons why they're perfectly consistent.

    Let's say you're figuring out how long you have to respond to a motion -- in my view, that is something best done in context not only because the context affects the outcome, but because if you're simply lectured on it you won't remember. (I remember nothing -- nothing -- I learned in my bar review classes for just this reason: rote learning is useless, and in a world where you can look anything up easily it's just idiotic.)

    Now, you could have a "skills" class or a clinic where students do problem sets, like "You're in the federal District of Blackacre and you've been served with an X motion. Consult whatever sources you need to and figure out when you need to respond," and attach the Blackacre local rules, the judge's rules, the FRCP, and the state rules. But (1) teaching in this fashion is expensive (you will need far smaller classes) and (2) these specific skills are not difficult and do not really need to be taught in academic institutions or attached clinics or externships (for which they pay dearly in tuition dollars).

    What we need are young lawyers who give enough of a shit about their jobs that they will go and identify the right sources, figure out when that response is due -- and then write it really well, researching and marshaling all the best authority for their clients. In short, we need lawyers to think their job is bigger than the task at hand.

    I realize that problem as it exists today (and it does) was not created by law schools, but it sure would be exacerbated by transforming law schools into trade schools.

    Separately, I might add that all this whining about "young lawyers don't have practical skills" is really about money and practitioners not wanting to mentor. Mentoring is one of my favorite things, and the myopic prejudice against it is as counterproductive as it is pervasive. A generation ago, lawyers had no more practical skills than they do today. In fact, they likely had fewer since summer associate programs were a complete party and clinics didn't exist. What's changed is the emphasis on the bottom line in the new corporation-firm, and mentoring takes a back seat in that model.

    Finally, your blog is great for bringing attention to the hordes of unemployed and underemployed lawyers suffering crushing debt loads. I would note, as others have, that a successful push to trade-ify law would result in dramatically lower salaries for lawyers.

    PS Your "Bullshit" post was really interesting. This one is just a mess.

  59. Of course! Two law school models of which both are separately good, but separately equal!


    Professor, your passion for academia is clouding your vision, but your heart is in the right place. If you're serious about prospective reform, it's clear that one of two models has to be adopted - either the vocational model or the theoretical model. You can't have it both ways. Pick one of the following:

    (1) Vocational - we "lock it up." Create a REAL pre-law major, not the bullshit standby for indecisive college students, with actual prerequisites and the LSAT becomes equivalent to a bar exam, with tests regarding actual legal questions. Law school is considered a profession akin to medical or dental school. The profession is monitored and regulated. Superfluous law schools are shut down. The USNWR is DONE - no more rankings. Legal academics are shunned and actual working professionals are put in their place. Lawyers come out ready and willing to *practice* law.

    (2) Educational - law schools really are designed to make you "think like lawyers." It's a race to the bottom in terms of salary. Prestige rules the day. The rankings continue and your *potential* value of a lawyer is viewed in terms of the rank of the law school that you attended. Legal academics are encouraged. This is essentially the current model that we have. It works great for T6.

  60. Can someone remind me why we're fawning over the prom queen of law schools? What percentage of these kids are EVER going to have a problem finding employment or in securing a livelihood?

    You didn't start this blog for Yale academics Professor Campos. Quit placating your yacht club acquaintances. YLS and HLS are part of the problem. If you can't see that - I'm not sure what to tell you.

  61. How are YLS and HLS part of the problem that led LawProf to start this blog?

  62. Did ANY of you people call any of your professors or deans to state your views? No? That's what I thought. Pussies.


  63. Law school should be only 2 years. Ideally it would be something available for the last 2 years of undergrad. It could also be available to those who had already graduated, but wanted to take the 2 year course--or that could be structured as an advanced degree like B school--attending some law program would be needed to take the bar. However, key is to keep something like the LSAT in place rather than to make the bar harder, since people studying actual laws and failing every year (like in Korea or Japan) is a big drain on society (there's only so much you can study for the LSATs). Ultimately, control on the supply of lawyers needs to be exercised by getting rid of the third and fourth tier schools.. there's no reason for them to exist.

    What law schools teach is pretty irrelevant.. law firms really don't care that much. Training programs would be difficult to implement. Much better to start associates off younger, with less debt and a lower salary. That could benefit everyone involved.

    The major problem is just cost of education generally, which is the worst for law school. Getting rid of effectively unlimited loans is a start. Another tool is to make all state schools radically cheaper.. increase class size, teaching loads.. lower salaries.. hire former lawyers for 100k.. tuition for top state schools drops to 10k. plenty of people would accept. If you can convince a lot of top students to go to a state school, suddenly it becomes higher ranked.. and private schools need to cut costs to compete. My two (or three) cents there...

  64. @6:58: I can't speak to LP's specific motivations, but elite schools are part of the problem.

    For one, they have long been passing the buck to firms when it comes to training. This makes grads more exposed to economic tides, as they absolutely must get that first law job right away.

  65. You could be trained within an inch of your life, but when the business cycle brings bad economic times, lawyers are vulnerable. When permanent, structural changes constrict the market, lawyers, no matter how well-trained, will suffer. This is not the fault of any school. If schools that are not HYS wanted to have a different model, and bring forth mire practice ready graduates, they could do it. If you are right, those big firms will abandon HYS and hire graduates from those schools who strike out on their own course.

  66. More practice ready

  67. Fish's comments don't surprise me. As a humanities scholar, he wrote that literature should be taught because it's, well, literature. Teaching it can't and shouldn't be justified in any other way, according to him.

    Now, I love literature (but have come to hate "Literature" with a capital "L.") I would like for other people to want to read the classics and enjoy them. But I am enough of a realist to realize that most people won't, and that most students only read the classics because they're required. Even the vast majority of those who would and could study literature for its own sake won't have careers as scholars and professors. But, of course, Fish doesn't consider such possibiities.

    He always struck me as one of those people who thinks that being elitist is the same as being intelligent, or at least scholarly.

  68. @5:46 pm:
    I am also a practicing lawyer and I couldn't disagree with you more.
    How to find the deadlines for a response in the District Court for Blackacre is EXACTLY what should be taught in law school. You check the FRCP, the District Court's local rules and the judge's webpage. A person who doesn't practice much in federal court would not think to check the local rules or the judge's webpage. Once you learn this fact, it is obvious.

    Practicing law comprises thousands of little facts that are "obvious" once you know them. Until you know them, they are not obvious. If you don't know them, you will get in serious trouble.

    In theory, any intelligent law grad could spend thousands of hours reading all statutes, cases, local rules, trial transcripts, etc and recreate the knowledge needed to be a lawyer. For that matter, any intelligent person who never attended law school could do the same (or read all of the books needed to acquire the knowledge base to be a doctor, engineer, chemist, etc.).

    The existence of libraries does not excuse professional training programs of the obligation to actually teach the substantive knowledge of the profession.

  69. Law school is useless, but it is disguised as a professional school. Most humanities and social science programs, and even many of the pure science programs -- though not the majority -- are useless too. They are research driven for the sake of research, not for some other, practical purpose. But unlike law, these don't masquerade as a professional school.

    Ah, but Prof. Fish wants the study of law to exist and to add something more. To that end, the academic study of law school (i.e., all law schools) are to law, what art history is to art. Music theory is to music. That may be fine on its own, but it is a grossly inefficient way to prepare students for the practical.

    People who want to be fine artists or musicians, study in studios or conservatories where they are taught to practice. theory and history are part of their training, but not the bulk of it. the same is true of medicine and dentistry. The study of law should be similar -- lawyers training law students in contracts, procedure, evidence and torts, with academics teaching jurisprudence and the conlaw topics.


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