The Law Professors' New Clothes

While we're sitting on hard benches waiting for cases to be called, the legal academy is hard at work reinventing our profession without us.  Massive drops in applications has made their attention imperative, even though there are still enough to fill the seats needed to pay the cost of scholarship. So what if law schools are cold-calling qualified applicants to entice them with Ginsu knives and financing packages? If you spell your name right on the LSAT, there's a law school for you.

This is pretty embarrassing for law schools, forced to reduce the quality of new admits because the smart kids no longer want to lose three years and a bundle of debt to an education that will enable them to get a part-time barrista position. The more upstanding schools are cutting their class sizes, while the less upstanding ones are happily taking their rejects so they can afford the dean's salary.

And they're coming up with schemes to cure their ills.  You probably weren't paying attention, because you were busy thinking about how to make your phone ring again, but what they come up with is going to affect you whether you care or not.

All these hungry little buggers they're sending into the profession need to find a way to pay off their loans and keep their mommies from crying, and if you read their blogs and websites, they're smarter, more aggressive, more caring and, yes, more experienced than you. Baloney, you say? Yeah. So what? They're doing what they've got to do to survive, and niceties like integrity are for old guys. They're fighting for their lives and, frankly, have completely rationalized ethics out of the picture. And since they are all brilliant (ask them, they'll tell you), they see no net harm from a bit of puffery.

Just this week, here's what the scholars came up with:

NYU wants to make a systemic change to law schools that would allow students to do law school in two years and take the bar.  The point is that it would cut the cost by a third, create a two-tier profession since some will stay for the full three years, and force law schools to make the third year more relevant.

While this could save some law students money, although at the cost of being second-class lawyers, it does nothing to make them more competent or to reduce the numbers of lawyers being spewed into a market that can't absorb them and has no use for them.  Cool plan, bro.

Yale Law School announced that for its first-ever class of law Ph.D.'s, it has received 82 applications for five spots, thus disproving naysayers that nobody in their right mind would waste their time on a law Ph.D.  While it proves nothing of the sort, the thrust toward a scholarly doctorate is happening while one of the core failings of law school is its inability to produce lawyers with the capacity to do anything remotely associates with what lawyers do.  What are the chances that creating a new cadre of scholars, even more detached from the practice of law, is going to produce better qualified lawyers?

It's not surprising that there are 82 people interested in the program. Lots of people, myself included, are interested in scholarly pursuits, and feel themselves better suited to churning out law review articles than showing kids the tricks of the trade or how to schmooze the clerk to get your papers filed.  But if we assume that the only place these doctors can get jobs is law schools, then this seems to be heading in the opposite direction of producing functional lawyers. While I've got nothing against law docs (that's doctors, not documents), they're the last thing we need in law schools.

Lawprof Steve Diamond, who is recovering from involuntary proctology exam by the scambloggers for his market oriented "let them eat cake" approach to solving the problem, has come up with a new initiative, which he modestly calls "Lawyers for America."

It would offer young unemployed or underemployed lawyers the chance to practice law serving an underserved community under the supervision of existing lawyers. One example: there are many thousands of small businesses in our poor and immigrant communities, including cleaning, housekeeping, gardening, construction and other services.  Many of these could be organized as LLCs thus shielding their owners from personal liability. This requires legal help.  These entities could use other legal advice as well. A legal service organization would be established in major urban areas that could provide these services.

The supervising lawyers could earn CLE or pro bono credit for their time. The law students would be provided a stipend for living expenses and more importantly would earn credits for debt relief. Every year of full time service would earn them 20% cancellation [sic] of their outstanding debt.

There will be a sign-up sheet passed around for you supervising lawyers, and we're trying to negotiate with Costco to accept your pro bono credit for food.  The law students, of course, don't have to eat, so no worries on that end.  And the karma gained from helping businesses in poor and immigrant communities will obviously form the basis for a thriving and successful law practice going forward, provided your career is limited to representing businesses in poor and immigrant communities, and when you have kids, they don't want to eat either.

Then Bill Henderson, at the Legal Whiteboard, has finally published his Part II to his book review of Brian Tamanaha's Failing Law Schools (a mere eight months after Part I), except instead of a blog post, it's now a law review article. How cool is that? It's called A Blueprint for Change, which starts with embracing futurist crackpot Richard Susskind, that all law outside the courtroom will be commoditized and either shipped overseas or done by nonlawyers.

Despite this, Bill doesn't call for the closing of law schools or the death of self-serving scholarship, because that would piss off the professoriate and nobody would be willing to join his consortium of law schools where 12% of scholars would create a paradigm shift, which he equates with the "Apollo Project," of "competency-based curriculum."  No, that doesn't mean practice-ready:

“Practice-Ready” is Not Enough. Despite the rebukes often received from the practicing bar, for most law schools an emphasis on “practice-ready” skills will be insufficient to cope with the structural changes occurring within the legal industry. Granted, it is true that better skills training will enable law school graduates to better compete for the finite number of traditional legal service jobs that will be available in the years to come. But, to be blunt, in a world that is getting pulled in Susskind’s continuum from bespoke to commoditized, practice-ready skills training will not change the total number of traditional legal jobs available to law school graduates. Moreover, one of greatest dangers of the “practice ready” solution is that we law professors will too readily conclude that we don’t need to leave the building—that is, engage with profession and the industry— to find a solution. Our schools would just need to hire more clinicians. Yet, this is a very expensive solution that fails to address the longer-term systemic employment problems.

What does it mean? I can't tell, except that they can spend the next decade writing law review articles on their empirical experience with it. So what if Bill's prescription solves nothing now. It's all going to change anyway, according to Susskind, we're just spinning wheels as everybody becomes a lawyer for 15 minutes. 

Notably, the Blueprint for Change assumes that all lawyers will work for big law firms, government or corporations, because, you know, it's not like the vast majority of lawyers are solo or small firm now.  But then, that's what would be expected of a Susskind apostle, since in his future, there will be no need for toilet lawyers do the banal work that will be taken over by computers and LegalZoom.

If I recall correctly, the problems facing law schools involve excessive expense, declining enrollment, declining standards, producing many times more lawyers than there are jobs or society can absorb, producing lawyers who are wholly unprepared to practice, producing lawyers who adore situational ethics, serving the population that needs but can't afford legal representation, and flushing their problems into our profession to deal with.

So while we're sitting on hard benches wondering whether a new logo will bring us wealth and prestige, the professoriate is vying for the new paradigm without us, hoping that whoever wins the game will get a statue of himself built outside Harvard Law School. 

Are any of these schemes going to make a better legal profession? For a bunch of smart people, these schemes strike me as pretty darned inadequate, both for law students, for the profession or, most importantly, for clients.  But then, if we leave it up to the lawprofs, what should we expect?

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Source: http://blog.simplejustice.us/2013/01/19/the-law-professors-new-clothes.aspx?ref=rss

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