Suggested Reading: “Addressing the Challenge of Teaching Skills in Today’s Law Schools: How Medical Schools Used to Have the Same Problems We Do and What We Can Learn from Their Efforts to Solve Them”

A new article was posted on SSRN last month by Jennifer Bard from Texas Tech University School of Law entitled Addressing the Challenge of Teaching Skills in Today’s Law Schools: How Medical Schools Used to Have the Same Problems We Do and What We Can Learn from Their Efforts to Solve Them.

Here is a piece of the abstract:

The purpose of this article was to provide resources for law school faculty members who want to integrate the skills of the practicing lawyer into today’s law school classroom by providing information about how medical schools have approached a similar task. In the last ten years, medical schools have been working to change a culture where skills were learned by observation and modeling into one where skills are taught intentionally and consistently starting in the first two years of medical school. This represents a significant change because even as medical school curriculum has evolved and changed over the past twenty-five years these pre-clinical years had focused on the acquisition of knowledge about the human body, not clinical skills. It has tried to present this information in the context of some significant differences between the resources available to medical schools which make the task of teaching skills earlier in the curriculum easier than the task will be for law schools. These advantages include a faculty which possesses current clinical skills and an extended period of subsidized apprenticeship.

Give the article a read and let us know what you think!

New Article: An Inconvenient Truth: The Need to Educate Emotionally Competent Lawyers

Professor Robin Wellford Slocum from Chapman University School of Law posted an article on SSRN entitled An Inconvenient Truth: The Need to Educate Emotionally Competent Lawyers. The article is a very interesting read on the importance of teaching emotional competence as opposed to teaching emotional detachment. Particularly, the paper addresses the four “domains” of emotional competency (self-awareness, self-management, social awareness, and relationship management) and how teaching students to develop each domain through skills training will create better prepared attorneys:

[W]e cannot expect our students to fully grasp the “bigger picture” or to appreciate the practical significance of their legal strategies if they share their future clients’ limited understanding of human behavior and their narrow worldviews. Absent some understanding of the complex nature of human behavior and how the emotional brain drives decision-making, students cannot fully appreciate how their clients, judges, juries or opposing counsel are likely to respond to their legal arguments or strategies.

Interestingly, the paper is not only about addressing the emotional needs of clients, but legal strategy and preparation for communication with the opposition as well. We do not realize in real time that our thought process is corrupted by emotions, but the article suggests that corruption awareness is trainable by pointing out “red-flags”. Such training would be useful, for example, in an exchange with opposing counsel where anger can cause the brain to activate pre-programmed responses rather than allowing for a rational argument on a point. Emotional competence seeks to prevent anger responses and promote rationality.

Read the article and tell us what you think!

The Law School Firm

By: Stacy Caplow, Professor of Law and Director of Brooklyn Law School’s Clinical Education Program

Reforming legal education has been a staple of discussion by the bench, bar and the academy forever.  Ever since the Carnegie Report kicked off the most recent round of conversations, conferences on the subject have abounded, attempts to redesign the law school curriculum have been proposed, and in a few instances, actually implemented.  As recently as last week the ABA adopted a resolution calling for law schools to “implement curricular programs intended to develop practice ready lawyers.  This halfhearted push from the practicing bar is insufficiently muscular to produce much change unless and until lawyers make practice-readiness a hiring priority and send that message to the law schools. 

It’s encouraging, therefore, when law professors, particularly non-clinical teachers, recognize the value of making meaningful connections between the academy and practice.  The recent article by my colleague, Brad Borden, and his co-author, Robert Rhee, entitled The Law School Firm, tries to “stimulat[e] the debate” about alternatives to traditional legal education.

Their proposal is that law schools establish a self-sustaining law firm where its students will receive training and whose lawyers will engage in the intellectual life of the law school.  The article outlines a model and then raises lots of unanswered, and maybe unanswerable, logistical, practical, financial, and ethical questions that would need to be resolved.  They don’t pretend to know the answers but are agents provocateurs, pushing the possibilities to new extremes.

My first reaction was to be pleased that a non-clinical colleague was concerned enough about the development of lawyering competencies to send his ideas out into the world and was happy to facilitate its circulation by posting its link on the clinic list serv.   My second reaction was to think, “Isn’t this what clinics do already, but on the margins and on the cheap?  Why not just build up the clinics, and build better bridges to the faculty.”  My third thought was, “Isn’t this model privileging a business practice that will generate income at the expense, perhaps of the traditional social justice mission of most clinics?”

Then, I reread the article and saw the model’s real potential:  It proposes a true collaboration between theory and practice, something that gets a lot of lip service but not much actualization. It identifies many issues that would have to be resolved and many choices that would have to be made, all of which are complicated.  But the proposal is rooted in some very solid values that include collaboration, experimentation, and entrepreneurship.   It’s also based in reality, not the slo-mo law practice of clinics.  At every level it argues for the mutual benefits for faculty, practitioners, and students, as well as the mutual respect for all contributions to the enterprise.

Like most big ideas, anyone could find fault or cite all of the practical obstacles to realization.  But in a gentle and respectful tone, the article challenges us to think in a new way about the time-honored critiques of legal education.  Perhaps some law school out there will take the bold step of implementing some or even all of this model.

ABA Passes NYSBA Resolution on Developing Practice Ready Lawyers

Late last week, the New York State Bar Association presented a proposed resolution to the ABA House of Delegates at their Annual Meeting in Toronto and the need for law schools to create more practice ready lawyers. Portions of the proposal were taken from the “Report on the Task Force on the Future of the Legal Profession”  The story was reported by John Caher in his article N.Y. State Bar Asks ABA to Support ‘Practice Ready’ Law School Education.

Here is a small piece of the article:

“We used to think that being a good lawyer simply meant knowing the law,” Doyle and Younger said in a report submitted to the ABA. “Today, we are more likely to think that good lawyers know how to do useful things with the law to help solve client problems. … Accreditation rules should emphasize how to apply theory and doctrine to actual practice, as well as encourage the process of developing professional judgment. These are critical skills that all newly admitted lawyers should have as they embark on their legal careers.”

The State Bar’s resolution does not suggest specific changes to the law school curriculum. Rather, it is a general call to revisit the issues raised by the MacCrate commission to ensure that the expectations of law clients are addressed in legal education and training.

“Too many law students and recent graduates are not as well prepared for the profession as they might be,” the State Bar said in a summary of its one-page resolution. “Law schools, bar examiners, the judiciary and the bar owe more to our young colleagues in these difficult times. This resolution is intended to cause those involved in legal education to address these issues, find solutions and revise legal education to meet these needs.”

Yesterday, the resolution was passed by the House of Delegates. The full resolution can be read here.

CLEA Seeks Input on Proposed Elimination of LSAT Requirement

Clinical Legal Education Association board members Mae Quinn and Perry Moriearty are seeking volunteers to participate on an ad hoc committee to explore the proposed elimination of Standard 503 (which virtually requires law schools to use the LSAT as the single test for admissions purposes).  The ABA Standards Review Committee recently voted to eliminate ABA Standard 503, which currently requires every prospective law student to take a “valid and reliable admission test” to assist law schools in “assessing the applicant’s capability of satisfactorily completing the school’s educational program.”  For more details, check out the SALT/CLEA report on the July meeting of the Standards Review Committee.

Now, the Council of the Section of Legal Education and Admissions to the Bar must decide whether to accept or reject this proposal.  SALT has written to the ABA to support elimination of Standard 503 arguing that, among other things, overreliance on the LSAT has resulted in exclusion of otherwise qualified applicants from underrepresented populations.  On the other hand, the AALS wrote to oppose the proposal.

CLEA has not yet taken a formal position relating to the elimination of Standard 503, but the CLEA Board has created an ad hoc working group to further explore this issue over the coming weeks.  CLEA members are invited to join the working group and/or to contact Mae Quinn (mquinn@wulaw.wustl.edu) or Perry Moriearty (pmoriear@umn.edu) with their thoughts.

Teaching Legal Writing

This post comes courtesy of the blog Dorf on Law in an entry entitled “Guest Post on Teaching Legal Writing by Professor Lisa McElroy“. The post builds on an article written for the New York Times on improving law schools. Here’s a small taste:

And all of these statistics are not speculation.  Every year, the Legal Writing Institute, a professional organization with over 2000 members (disclosure:  I am member of the LWI Board of Directors) and the Association of Legal Writing Directors (disclosure: I am a past member of this organization’s Board, as well) conducts a survey of legal writing programs across the country, a survey with a remarkably high response rate (this year’s was 94.5%, with programs from 188 law schools responding). 
 
But here’s the rub:  As that same survey describes, legal writing professors are typically paid far less than their podium colleagues.  The average legal writing professor today earns $73,773, regardless of number of years teaching;  a third of legal writing directors earn (on average) $26,000 less than entry-level podium faculty members at their schools.  An average director has been teaching in law schools for 15 years.
 
And that’s not all.  Legal writing professors may occupy less desirable office space, they may be prohibited from participating in faculty governance (even on matters, like curriculum, that directly concern them), and they often carry titles like “instructor” or “lecturer” rather than “professor.”  As reflected by the fact that only 18 law schools primarily employ legal writing faculty as tenured or tenure-track professors , very few have the job security that their podium colleagues enjoy.  Again, as Garner notes, the job of teaching legal writing is the least respected in most law schools.  And what Garner does not say explicitly?  That lack of respect often trickles down:  from administration, to podium faculty, to students (one of my darkest days of teaching was when I conferenced with a first-year law student, encouraging her to put more effort into legal writing; she replied that she didn’t want to take time away from her “real courses.”)

What the ABA Could Do

The ABA has responded to Senator Grassley’s request for information about law school scholarships and accreditation.  The escalation of tuition and enrollment has been under scrutiny, particularly in light of the dim employment outlook for new grads, many of whom were counting on six-figure salaries to pay off their student loans.  (I won’t link to examples of the blogs out there railing about the perceived bait-and-switch, but the bitterness is acute.)

The ABA’s position is that an accrediting agency must approve the schools that are properly educating students, regardless of whether adequate job prospects await those who join the profession.

Perhaps.  But it does seem that the ABA could better require schools to provide accurate data about post-graduate employment of recent graduates.  This has been a problem for a long time.  While some schools may be telling the story (Dean Matasar states “we explicitly tell them that most graduates find work in small to medium firms at salaries between $35,000 and $75,000”) a more specific mandate from the central accrediting agency would provide a a more accurate snapshot for all potential students.

The ABA also could circulate data about the actual conditions of the profession, countering the engrained myth that a law degree guarantees a job and an immediately high income.  Spreading the word that the majority of lawyers earn a moderate income in small or medium firms would serve the profession by better aligning expectations with reality.  Students who knew ahead of time that their best job prospect might be self-employment would approach law school a bit differently and demand correspondingly pertinent educational opportunities.

Sadly, there is no shortage of work for lawyers.  It just isn’t well-paying work.  ABA action in this area could better attract to the profession those people who are fully aware of this challenge and prepared to meet it.

 

Boston College Symposium: The Way to Carnegie

An interesting symposium coming up in the fall:

Symposium:  The Way to Carnegie:  Practice, Practice, Practice— a conversation about pedagogy, social justice , and cost in experiential legal education to be held on October 28, 2011 at Boston College Law School, Newton, MA

Matasar responds to NY Times & defends Legal Ed reform

I read the NY Times article and was not impressed. Where was the analysis of what makes a good lawyer? Where was the focus on what society needs lawyers to be? Media focus on the cost and problems with current legal education has been an important part of the reform mvmnt. However, the media has been beating that drum – as has this Blog – for several years now. It’s time for a more nuanced analysis and a focus on problem solving. I also was sorry to see the Times lack of insight into it’s own elitism. It’s myopic focus on Big Law is understandable given its NYC base but unforgiveable in addressing the future of the legal profession and Legal Ed.
Although I have disagreed with Matasar on policy issues, I do believe he has a sincere devotion to law students and post his response here:

http://www.nyls.edu/news_and_events/matasars_response_to_nytimes

Law School Economics: Ka-Ching! from today’s Times

Condolences to the folks at NYLS . . .although this is more about the soon-to-depart Dean than the law school . . . nothing really new here except maybe the focus on Richard Matasar’s business interests and the incongruity of his actual policies with his frequent and fervent critiques of legal education . . . surprising this is considered newsworthy, really.

An Experiment in Laptop Usage Policies in the Classroom

My colleague David Achtenberg has used a unique policy for regulating student use of laptop computers in his large enrollment Civil Procedure class.  He designates the back three or four rows in the classroom as an “Internet Usage Zone” where students can, within limits of reason and legality, use their laptops in any way they wish.  The rest of the classroom is designated an “Internet Free Zone” — students can use their laptops only for class notes and for referring to class-related materials on their laptop or a flashdrive.  These students are directed that they may not access the internet for any reason and they may not use their laptop for recreation, diversion, or “doodling.”    He emphasizes to the students that there is no relative advantage or disadvantage to their choice (and in fact he was unable to find a difference in grade outcomes related to the choice in prior years). 

This is Professor Achtenberg’s third year implementing this policy. He conducts a survey after grades are submitted.  The survey results this year indicated that approximately:

  • 71% thought the policy made the learning environment slightly (46%) or significantly (25%) better,
  • 25% thought it had no effect
  • 3.5% thought it made the learning environment slightly worse.  (No one responded that it made the environment significantly worse.)

Asked whether they would favor such a policy in future classes

  • 93% would somewhat (36%) or strongly (57%) favor such a policy
  • 3.5% didn’t care
  • 3.5% somewhat disfavored such a policy. (No one responded that they strongly disfavored the policy.)

More information about Professor Achtenberg’s approach, a copy of his policy and the way in which he introduces it to the class, and the complete survey results, including student comments, is available athttp://law2.umkc.edu/faculty/profiles/glesnerfines/laptopusage.pdf

 

 

 

Talk about multi-competency assessment of professional qualifications . . . medical schools way ahead of us, again

Worth checking out:  “New for Aspiring Doctors, the People Skills Test“.   Eight US and 13 Canadian medical schools, including Stanford and UCLA, have adopted the “multiple mini interview,” or M.M.I.  This technique seeks to “test” medical school applicants for ethical and problem-solving acumen and even more importantly, ability to collaborate.   The schools invite applicants to engage in an admissions equivalent of speed-dating: a series of nine brief interviews that require them to demonstrate whether they have the social skills to navigate a health care system in which quality communication has become critical.   The interviewers are trained health care providers and community members who meet briefly with and assess certain attributes of the applicants.

On a Saturday, candidates for admission stand opposite a number of small rooms.  When a bell sounds, the applicants read a sheet of paper taped to each door that describes an ethical problem.  Two minutes later, the bell sounds again and the applicants rush into the rooms to find waiting interviewers.  The candidates have eight minutes to discuss that room’s situation.  Then the bell rings again and they move to the next room, the next surprise issue, and the next interviewer.  Interviewers score each applicant with a number and sometimes a brief note.

“[A]dministrators said they created questions that assessed how well candidates think on their feet and how willing they are to work in teams.  The most important part of the interviews are often not candidates’ initial responses — there are no right or wrong answers — but how well they respond when someone disagrees with them, something that happens when working in teams.  Candidates who jump to improper conclusions, fail to listen or are overly opinionated fare poorly because such behavior undermines teams.  Those who respond appropriately to the emotional tenor of the interviewer or ask for more information do well in the new admissions process because such tendencies are helpful not only with colleagues but also with patients.  ‘We are trying to weed out the students who look great on paper but haven’t developed the people or communication skills we think are important. . . .’  A survey by the Joint Commission, a hospital accreditation group, found communication woes to be among the leading causes of medical errors, which cause as many as 98,000 deaths each year. ”

“The system grew out of research that found that interviewers rarely change their scores after the first five minutes, that using multiple interviewers removes random bias, and that situational interviews rather than personal ones are more likely to reveal character flaws,” said Dr. Harold Reiter, the professor at McMaster University in Hamilton, Ontario, who developed the system.  “In fact, candidate scores on multiple mini interviews have proved highly predictive of scores on medical licensing exams three to five years later that test doctors’ decision-making, patient interactions and cultural competency,” Dr. Reiter said.

Most law schools have eliminated admissions interviews, even by alums, or very rarely use them, I believe.  I’ve heard it said that law schools have no resources for such a time-consuming process.  It seems more than a little bizarre that law school  faculty refuse to devote substantial time to the recruitment and selection of their incoming students — what, exactly, is more important for and predictive of the law school’s success? — but now the medical schools appear to have made it feasible to meaningfully augment the admissions process without the participation of large numbers of faculty and staff.   We could imagine refinements of this method that would similarly ask law school applicants to show us, rather than tell us about, their approaches to communication, collaboration, and problem-solving.  In an era when some law schools like to claim that, despite the US News pressures,  the LSAT and GPA are not the sole determinants  of readiness for the legal profession, here is an opportunity to objectively and systematically incorporate other attributes into the admissions rubric.  Are any law schools already on board?

And we think that we have it tough . . . consider the Japanese bar exam

As we count down toward this summer’s bar, trying to soothe our nervous-to-frantic recent grads, might want to suggest that they read “A Japanese Legal Exam That Sets the Bar High” (I realize that not everyone can access NY Times articles online for free, but won’t reproduce the whole article to avoid using up too much space, as my last post did.)

Japan recently “reformed” its bar examination process, ostensibly to increase the number of lawyers available for the under-served (within reason, mind — we’re talking an increase in overall number of lawyers admitted per year from 1000 to 3000).  But the folks from the Justice Ministry who draft and administer the test seem not to be on board with this objective: only 25% of test-takers passed last year.  Two law schools did not have a single graduate pass.  Perhaps the biggest change, and challenge: now candidates can take the bar exam only three times.

So we have to console ourselves: it could be worse.

ABA JOURNAL GENERATES MASSIVE COMMENTARY ON C.J. ROBERTS’ CRITIQUE OF ACADEMIC LEGAL SCHOLARSHIP

Chief Justice Roberts’ scathing dismissal of the value of legal scholarship evoked a far greater outpouring of comments, mostly fervently agreeing with the Chief Justice, than I’ve ever seen in prior ABA Journal articles about law schools. Many commentators directly connect the irrelevance of most law review articles with the poor job they say law schools do of preparing their graduates for practice. A few law professors respond with intense defenses of academic scholarship and assertions about the educational effectiveness of law schools. It’s a rich mine for this perennial debate. The original article and all comments — there are many more — can be found at http://www.abajournal.com/news/article/law_prof_responds_after_chief_justice_roberts_disses_legal_scholarship/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email .

Law Prof Responds After Chief Justice Roberts Disses Legal Scholarship

Posted Jul 7, 2011 5:29 AM CDT
By Debra Cassens Weiss

Chief Justice John G. Roberts Jr. has raised hackles with his suggestion that there is a disconnect between the scholarship of law professors and the work of practitioners.
Roberts knocked law professors and their work while answering questions at the 4th Circuit Judicial Conference in White Sulphur Springs, W. Va., at the end of June.

The American Constitution Society blog has Roberts’ quote: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” C SPAN posted the interview.

University of Maryland law professor Sherrilyn Ifill responded in a blog post at Concurring Opinions. “Legal scholars will on occasion indeed take up Kant (and there’s no shame in that),” she wrote, “but more often than not, published law review articles offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decision-making on how law develops in the courtroom.”

Comments
1.
Atty
Jul 7, 2011 6:49 AM CDT
In my practice, I don’t have time to read dense 70 page articles concerning “muscular critiques of contemporary legal doctrine.”
2.
Adjunct.
Jul 7, 2011 7:02 AM CDT
The Chief is right on this. What’s even worse than the lack of relevancy of the academy to law (ie the practice of law) is the “syndication” of UK/US law programs around Europe and elsewhere, replete with European civil lawyers not trained in common law purporting to teach undergrads (ie potential future attorneys) common law. Education = nothing more than a dirty business for these colleges, and the Chief is right to remind faculties to stay focused, and stay relevant.
3.
B. McLeod
Jul 7, 2011 7:25 AM CDT
Seems to me that Roberts only said what most people already know. I Kant imagine why it is seem as a criticism.
4.
Timothy P. Flynn
Jul 7, 2011 7:36 AM CDT
Most lawyers would agree that a survey of European intellectual history, even a muscular one, has no application whatsoever to the contemporary practice of law and is really a luxury. I would love to have that kind of time; too busy, however, keeping up w/ deadlines and developments in my practice areas.
5.
Reason
Jul 7, 2011 8:05 AM CDT
Furthermore, these academics entirely fail to produce lawyers who can effectively represent clients upon graduation. Perhaps they should spend a bit more time studying their training techniques and a bit less on “muscular critiques”. It’s an absolute shame that law schools produce thousands of JD’s who’ve never seen the inside of a courthouse (let alone courtroom).
6.
Maryland Esquire
Jul 7, 2011 8:18 AM CDT
Well, I never thought I would say this, but I totally agree with Chief Justice Roberts.
7.
a.nonny.mous
Jul 7, 2011 8:29 AM CDT
Chief Justice FTW!
8.
Tim
Jul 7, 2011 8:54 AM CDT
While I agree that legal academia’s fascination with the esoteric serves noone particularly well, I wonder what the Chief Justice wishes they would focus on. There is, after all, no shortage of publications that are oriented toward the practice of law as craft, rather than as theoretical and social construct.
Does he wish a Scalia-esque inquiry into originalism? That’s an ideological position from the outset, and would undoubtedly swiflty devolve into arcane pieces on the role of 18th century English landscape painters on Jefferson’s view of a pastoral nation. Is that better?
It’s appropriate to point out the problems in legal scholarship. It’s also appropriate to ask the CJ, now that he has seized that particular pulpit, what now?
9.
review
Jul 7, 2011 9:34 AM CDT
Law review articles—-great for tenure for law school professors but useless for practical law.
10.
Pushkin
Jul 7, 2011 10:16 AM CDT
Looks like no one on this blog reads law reviews, or follows links in the posted stories, since Professor Ifill gives a number of examples to disprove Roberts’ claim. (The other possibility, of course, is that no one on this blog practices at a level where ideas are important). The complaint that law review articles are irrelevant to practice goes back to a famous Harry Edwards article (in a law review of course), in the mid nineties and has become kind of an urban legend since then. There have been several empirical studies of the issue in the last few years, and they have found that court usage of law review writing is at an all time high. This is particularly true for business law issues and Courts which specialize in them, such as the Delaware Supreme Court. For a good example of an article describing this phenomenon, with citations to other such articles, see James A. Catone & Michelle Harner, “Is Legal Scholarship Out of Touch? An Empirical Analysis of the Use of Scholarship in Business Law Cases” 19 University of Miami Business Law Review (2010). Roberts now has added ignorance to his growing list of under-qualifications for the job he holds. Cheap shots are the stock in trade of bullies and insecure yuppies, so I suppose no one should be surprised.
11.
W.R.T.
Jul 7, 2011 10:49 AM CDT
Pushkin @10
“The other possibility, of course, is that no one on this blog practices at a level where ideas are important”
“Cheap shots are the stock in trade of bullies and insecure yuppies, …”
So which one does that make you, Pushkin? Or should we add arrogant legal scholars to your list?
12.
Catherwood
Jul 7, 2011 10:56 AM CDT
The Chief seems inclined to unmoor the law from its intellectual and moral foundation. It is bad enough when freshly elected, inexperienced politicians try to do that, but for the Chief Justice of the United States to applaud any move in that direction is sad, indeed. The currents and eddies of right and wrong, which the Chief finds such plain sailing, I can’t navigate, I’m no voyager. But in the thickets of the law, oh, there I’m a forester.
13.
Steve
Jul 7, 2011 10:58 AM CDT
I agree. The only thing worse than a law review article is an opinion by the Supreme Court of the United States. For intelligent analysis, lawyers should read opinions from the Seventh Circuit.
14.
Scopes
Jul 7, 2011 11:24 AM CDT
I grew up in the mistaken belief that the Supreme Court represented the point where legal scholarship formed practical law and the Supremes were (at least theoretically) the greatest legal scholars in the land. Apparently I was wrong, they are just a bunch of ambulance chasers made big.
I can understand legal scholarship having no place in a storefront law firm. But if it has no place in the Supreme Court, where then? Isn’t that what separates us from Bulgaria?
Obviously I am not a lawyer
15.
Wave
Jul 7, 2011 11:42 AM CDT
Instead of getting defensive, listen to and implement the feedback.
16.
Spencer Neal
Jul 7, 2011 11:44 AM CDT
After reading Prof. Ifill’s article, I have to agree with her. There are many law review articles that the Chief Justice should but won’t read, especially the ones criticizing Supreme Court opinions like Iqbal.
17.
larbear1968
Jul 7, 2011 12:17 PM CDT
Hooah!!
18.
tenured but practical
Jul 7, 2011 12:37 PM CDT
I’m a law professor and in this rare case, agree with Justice Roberts. The so-called Legal Academy promotes obscure, mind-numbing legal scholarship over focused topical writings that can help judges, lawyers, students, and the profession. We have to start admitting that the Emperor has No Clothes.
19.
19. Jim-OH 2011-07-07 1432 -0400 [ ]
Jul 7, 2011 1:33 PM CDT
As I see it, some are well worth the read, some not.
20.
John Ruskin
Jul 7, 2011 1:44 PM CDT
19 Jim-OH has it exactly right. Some articles in law reviews are quite esoteric and of little use in the practice of law. Other articles in law reviews can be quite useful. Like all academic publishing, law review articles are all over the map.
So far, only Pushkin (@10) has cited any hard evidence that might indicate the current relevance or usefulness of law review articles.
21.
Plague
Jul 7, 2011 1:48 PM CDT
Tenure at Cooley does not constitute a real law professorship.
22.
Paul Bunyon
Jul 7, 2011 1:56 PM CDT
@ John Ruskin – but wasn’t Pushkin’s evidence written by law professors and compiled in a law review article – sounds like a potential bias and credibility issue. Seems to me that a couple of law profs spending time, at the expense of THE U,to study and write an article touting the relevance of the law review articles of their peers may be unintended evidence contradicting Pushkin’s position.
BTW can’t someone make an offhand remark at a conference of judges without pricking the thin skin of the tenured ivory tower set – or will they just write another article about it?
23.
Funyons
Jul 7, 2011 2:08 PM CDT
Think about it – how many busy practitioners would have the time to research and write a law review article enumerating and categorizing the law review articles that are inane and completely irrelevant to the practice of law? How many such articles, if written, would see publication? So it would seem that the deck is stacked and the articles will be written by professors, defending their own.
I enjoy philosophy and theoretical physics and understand the impact of philosophy on the drafting of the D of I and our Constitution, but really… I also enjoy a good whiskey – but not while I’m working.
24.
jbolaw
Jul 7, 2011 2:34 PM CDT
It’s hard to believe lawyers themselves disparaging legal scholarship, which forms the intellectual basis of our craft. It reflects a fundamental misunderstanding of the role and scope of scholarly legal research.
Justice Roberts’ whining is more understandable. He has been an intellectual lightweight for his entire legal career and possibly knows less about the law than any of his modern predecessors as Chief Justice. His own decisions are informed by political concerns, not the law. That’s why he was nominated for appointment by the intellectual lightweight President who described the U.S. Constitution as just a “goddamned piece of paper.”
Perhaps C.J. Roberts would prefer more practical law review articles that emphasize “How to Wipe Your Butt With the Constitution,” or “How to Behave Unethically as Chief Justice of the Supreme Court and Get Away With It.” Those are Roberts’ specialties.
25.
middletown usa
Jul 7, 2011 2:48 PM CDT
Wow jbolaw, your comment clearly shows the depth of your scholarship and political neutrality – sometime, as with your comments, the best said is – nothing.
26.
John
Jul 7, 2011 3:38 PM CDT
I’ve used law review articles numerous times to aide in understanding areas of law new to me. I’ve also used them to help flesh out novel arguments and legal theories.
That doesn’t mean all articles are useful, but it’s impossible to say when an article is useful. It’s like art—usefulness is the in the eye of the user.
27.
Just the facts, Ma’am
Jul 7, 2011 5:55 PM CDT
@20
You wrote “Like all academic publishing, law review articles. . .”
You should not confuse law review articles with real academic publishing. In virtually all other disciplines journals are edited by accomplished scholars in the area. Law reviews are edited by law students. It’s a wonder they have any credibility at all.
28.
B. McLeod
Jul 7, 2011 6:03 PM CDT
Heh. I always figured Munchkin for the law review type.
29.
borisjimbo
Jul 8, 2011 2:13 AM CDT
What’s the point in doing real scholarship in even Supreme Court briefs if the justices merely scoff at it instead of rebutting it even though they’re in fact no more knowledgeable about the matter than anyone else?
30.
Professor Marc H. Greenberg
Jul 8, 2011 2:37 AM CDT
I practiced law, both litigation and transactional work, for twenty years before becoming a full time law professor, and I still do a small amount of practice. I bring my experience to my teaching and my legal scholarship, which often focuses on practical approaches. What is disappointing about the Chief Justice’s comment is its generalized nature – like lawyers, some legal scholarship is good, and some is worthless. The valuable work is cited regularly in appellate decisions and helps guide legal policy.
31.
Stephen R. Pelcher
Jul 8, 2011 5:08 AM CDT
As a general proposition, the observation of Justice Roberts is undoubtedly correct.
32.
Ed’s Law School Grad (evening division)
Jul 8, 2011 5:50 AM CDT
This is great. The clash of the Ivory towers. Of course the seed of this criticism from Chief Justice Roberts probably has nothing to do with his politcal views and that of many law professors—does it?
Anyway it is amusing to us members of the bar considered the “great unwashed” as we feel neither one of these two could tie there own shoes in the “real world” like in fromt of a jury or speaking to a battered spouse or assisting a small farmer being crushed by regulation .
SO you two Have at it and when I’m constipated or can’t sleep I’ll read about it.
ABA—-keep printing this stuff now that we’ve all forgotten about Casey Anthony WE NEED this information.
Got any Stories about Judges turned Pro Wrestlers or Law professors who are really superheros?
Why am I reading this ? I’ve got to got to work I guess I’m just jealous.
33.
donniem
Jul 8, 2011 6:04 AM CDT
@jbolaw – Loved your comment. I agree that more practical courses should be given at law school, but to practice without understanding the history and underpinnings of the law and legal theory is equally dangerous.
Roberts basically admitted that his Court doesn’t give a rat’s a** about the Constitution or the freedoms it was meant to protect. I wonder what he considers esoteric? Likely articles criticizing the lack of Constitutional bases for a number of decisions by the so -called “originalists.”
34.
Mark Carter
Jul 8, 2011 6:07 AM CDT
I’ve read, cited and written law review articles. So has John Roberts. A fair reading of his statement is that it makes a simple point; academics who study and write about arcane and antiquated legal principles offer little to the average practitioner who is focused on advocating in the here and now. I would add that assembling that knowledge does even less for the lawyer’s clients. These critiques, predictably, evidence a distaste for the Chief Justice’s philosophy more so than his intellect. Fortunately for our nation the critics whines are meaningless – ersatz upon an an anonymous and unseen palette of liberal woes. Perhaps they should all write law review articles about this and cite them to the US Supreme Court.
35.
hiwaves
Jul 8, 2011 6:36 AM CDT
There is a distinction not addressed in the commentary and it is found in the manner and content of legal argument in Europe where semantics can still win a case, as opposed to legal argument in the US where academics is not construed as entirely relevant.
This is valid comment because the reference to Kant and 18th Century Bulgaria is in effect a reference to semantics as practiced in legal argument in Europe. A European judge can be persuaded on the intellectual principals derived from legal history, and ancient and obscure case law, whereas in the US such an approach is considered subversive, an attempt to distract and divert the legal process.
A common response from an American judge to a largely academic brief might be “Do you expect me to read this?” where a British judge would embrace the academic principals and apply them to the case and allow substantial and unrestrained argument on the semantics.
So Chief Justice Roberts comments are valid to an extent but avoid the cultural history of the profession. Law was practiced for many thousands of years before the concept reached our shores. We did not design it or create it’s principals but we do pervert it to our efficient needs.
36.
Philip A. Byler
Jul 8, 2011 6:42 AM CDT
As a general matter, Chief Justice John Roberts is correct. There are exceptions as to law school professors and law review articles; a good law review article or legal book is wonderful to have for insight into a legal subject. But much of what I have seen law professors write in law review articles and in books is worse than worthless.
37.
Mary Frances Love
Jul 8, 2011 6:44 AM CDT
Chief Justice Roberts and I finally agree on something. Did a pig just fly by? Law professors are what’s wrong with recent law grads, too. I cringe when I have to interview a 2010 and 2011 grad. There are no jobs to be had and yet these kids are still arrogant.
38.
Prof. Muriel Morisey
Jul 8, 2011 6:53 AM CDT
I’ve been on the Temple law faculty for 20 years. I endorse the view of those who point out that the Chief Justice engaged in a gross generalization that is also inaccurate. Some legal scholarship has enormous utility for courts and those in practice. Some is not intended to have readily identifiable practical utility, but to contribute to the law’s ability to accommodate thoughtful critiques of existing doctrine and adapt to new circumstances and new ideas. Some are specialty journals with tremendous value in subject areas like the environment, civil rights and international law. No one is obligated to read something they don’t find useful. No one in practice is obligated to read esoteric material if it will come at the cost of devoting the appropriate amount of time to their clients’ concerns and legal needs. Ultimately, I wonder why the Chief Justice thought his remarks were worthwhile, particularly since they didn’t demonstrate research and thoughtful reflection.
39.
Connorblum
Jul 8, 2011 6:59 AM CDT
Pushkin’s post deserves careful reading. Most of the comments and the Chief’s remarks appear to misunderstand the purpose of and function fundamental research and scholarship. No physician reads reports on the intricacies of stem cell research as a means to improving her day-to-day practice. Nor should practicing lawyers expect to find many law review articles that will assist her in drafting a will or preparing for a deposition. That, after all, was never their purpose or function. But appellate attorneys and judges and legislators make use of the research and thought in law reviews routinely. More importantly, the work of the law review writers—like that of others doing fundamental research in any field—elevates the overall competence of the profession, whether a particular attorney ever reads a law review article.
As someone who spends much of my day reading scientific and scholarly articles from the social sciences, neuroscience, and other journals, I can attest that the level of scholarship in law reviews compares extremely well with that of other disciplines—something of which our profession should be proud. The Chief is off base here.
40.
Dan Bowling
Jul 8, 2011 7:02 AM CDT
Much of what abajournal.com writes about – and we comment upon – concerns the state of the legal profession and the life of its lawyers, topics more humanistic in nature than practical “how-to” guides on practice topics. As such, law review articles on jurisprudence, the history of legal education, philosophical influences on the development of the law, moral ethics vs. legal ethics, etc., are highly relevant to practice today – indeed, they are essential in understanding and addressing our professional malaise. Of course, as others have noted, much of what passes for legal scholarship is poorly written, overly dense, and useless for any purpose. However, one can find clearly written, well-argued, and fascinating articles on interesting topics – yes, maybe even about Kant’s influence on the law – if one looks hard enough.
41.
Pierre
Jul 8, 2011 7:15 AM CDT
Re hiwaves
Pity you seem unable to distinguish between “principles”-the word you should have used- and “principals” the word you misused.
On the broader topic, over my four decades of practice I have noted my decreasing use of law review articles, not because they are useless, though some are, but because the publication delays renders them untimely. I regularly keep up with the articles posted online in SSRN where the dates of submissions and of revisions are given.
It also seems to me that the need for Increasing speed of access to comments etc. Has propelled blogs by law professors and practioners into the forefront of usefulness thus displacing law reviews. Coporate law postings by professors Bainbridge and Ribstein are always worth reading, as is ,for example, the Securities Law Professor blog,and the comments on Delaware cases by Wm Allen or by Leo Strine. Now I rest.
42.
Diana Brehob
Jul 8, 2011 7:18 AM CDT
I obtained a Ph.D. in mechanical engineering 2 decades prior to attending law school. I am surprised at the widely-held opinion that a lawyer out of law school should be able to practice law. In engineering, it is widely understood that you learn the fundamentals of engineering and then learn your specialty on the job. There are so many unique areas that one could focus on that it is naive to think that your engineering undergraduate education could prepare you for your ultimate job. Instead, it provides a toolbox that you bring to bear on the job as you are guided by mentors in that specific field. I worked as a patent engineer and Patent Agent for 5 years before I went to law school. It was precisely for these fundamental principles that I attended law school. I explained it to engineering friends: one might learn how to design a heat exchanger without an engineering degree simply by working on the job, but one is not going to pick up the fundamentals of thermodynamics on the job. The same was true for me. I learned how to write and prosecute a patent application mostly by on-the-job training. But, I found myself frustrated in meetings with lawyers in which they spoke of fundamental legal concepts. Although they would try to explain it to me, my understanding was shallow having not read the underlying case law and essentially going through the rigors of law school. I am really quite taken aback by the nuts-and-bolts attitude of legal practitioners presented here. If a goal is for a law school graduate to to be able to practice out of the chute, then I recommend that law school be revamped to the engineering equivalent of technician training. One could have a 2-year program to specialize in Family Law and a 2-year program on Tax Law teaching one how to work through the practicalities of the legal system (appropriate documents, software tools, etc.). Forget the fundamentals and the broad understanding! My point is that you can learn the specifics of your field on the job, but not the fundamentals. That is the point of the educational system, i.e., push one to think beyond practicalities.

I will temper my comments by saying that I did not attend one of the more higher-ranked institutions for law school. Instead, I attended a school that does have a more balanced approach between theory and practical education, and gets penalized in rankings for that. Nevertheless, I may have a different view based on my feeling that I was exposed to enough of the fundamentals and theory to give me the appropriate background while also being exposed to practical law.
43.
Fred Flintstone
Jul 8, 2011 7:24 AM CDT
Interestingly, the comments here are mostly in agreement with the Chief Justice. That being said, it appears those in the academic world are out of touch with the profession.
While I would agree that theory and substance need to be a significant part of law school, it appears it is the only thing taught. Many race to make law school a 2.5 year experience by taking as many classes in a hurried fashion as they can. They learn about such theory that has no practical relevance to a practitioner. The hurried graduate can’t draft even the easiest Motion for an Extension of Time that is granted as a matter of right. I recall graduating in 2005 and after landing a job at a small firm wondering what I was supposed to do as a lawyer to advance a case. I had no idea and was blessed that the firm understood and was willing to teach what wasn’t taught at “law school”.
Instead of allowing the less than three year tenure at law school, the ABA and others should be looking to lengthen the experience so that there is some mandatory residency period to learn the profession. Imagine seeing a recent medical school graduate who has never touched a patient in the 4 years of medical school. They might know everything about the science, but if they can’t give an injection, they’re useless. Are you really comfortable being the guinea pig? Most law school grads spend their entire academic career in the hollowed brick and mortared halls and never speak to a client, never interview a witness, and never draft an appearance. Many law school professors have never practiced law. Schools will claim they have clinics, but only a minority of the students partake.
Rather than strengthening the profession, the ABA and law schools are softening the rules to increase the number being admitted. They are stuck in time in the belief that law school students will find jobs at Big Law where their practical training will take place. I believe to move forward, the ABA and law schools need to adopt a more practical approach to teaching law. It has to be theory coupled with practice. Only then would the Chief Justice’s practical and learned comments be rendered moot.
44.
hiwaves
Jul 8, 2011 7:25 AM CDT
Re: Pierre #41
Apologies, my attention deficit is acute at 3 A.M.
45.
Prof. Muriel Morisey
Jul 8, 2011 7:35 AM CDT
Many law schools do an excellent job of preparing students for practice. Temple, where I teach, and the University of Maryland, where Professor Ifill teaches, are examples. Some of this occurs in traditional classroom settings where professors bring the real world into the discussion of assigned cases. A great deal happens in clinicals where students get supervised experiences doing the things law practice will require. The overgeneralized assertion that law schools don’t combine theory and practice is refuted by even a cursory review of the course offerings of law schools, including the most prestigious ones. The question of legal scholarship’s utility is distinct from the question whether law schools prepare students to practice.
46.
Fred Flintstone
Jul 8, 2011 7:47 AM CDT
With all due respect Professor, I expected that response. I knew someone from the academic world would be unwilling to consider another approach, defending the status quo. There is no question that there is a distinct difference between the question of utility and practice. No one is arguing that.
I suggest the law schools need to model medical schools. Require that “residents” practice with a firm prior to being licensed. Until you do this, your classroom approach is not enough. I was in the law school clinic, I worked on a part of a single case. It didn’t prepare me for the profession in a semester’s time frame. That’s the underlying message here.
If you don’t want to hear the message it is ok. The majority here who are in practice, including myself, are suggesting that law school, even with the practical classes, did not prepare them for the profession. To balance the two, change must take place. In my opinion, the only way to do this is to lengthen the training with a mandatory residency.
47.
dcinsider
Jul 8, 2011 7:53 AM CDT
Isn’t there room enough in legal scholarship for both? Is there some kind of page limit? If an article is read, well received, and cited, it has met its purpose. If not, perhaps it was less than helpful, or too esoteric, or simply not important. It doesn’t mean that it should never have been published. Not every novel is a Stenbeck.
48.
dcinsider
Jul 8, 2011 7:53 AM CDT
or even a Steinbeck 😉
49.
Nor
Jul 8, 2011 7:54 AM CDT
If law review articles did what their descriptor implies, review new developments in the law and synthesize them into implied rules, they would all be useful. But many are really just articles on philosophy, economics, statistics, politics, history, etc.
50.
Marked Man
Jul 8, 2011 7:58 AM CDT
I used to be a law review articles editor in school, then a BigLaw associate, and now an in-house lawyer.
There is no doubt that scholarship in the law could be more relevant and focused. There is sometimes a drive to find some “new” topic that results in these inane articles that become trivial reads. When I was an articles editor, many times I had to question the point of the article when making a publication decision. When I was an associate, the best articles often were the student ones because they had the extensive footnotes that were a research goldmine. And now as in-house counsel I don’t have time to read many law review articles, I tend to rely on shorter pieces and if I do read one it’s usually a “hard” analysis of an issue that I am dealing with.
I’d prefer to see more focus on the things that matter rather than trying to find some interesting topic that lets the author come up with some pithy title.

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CLEA’s Latest Comments on ABA Revisions

The ABA Standards Review Committee will be meeting in Minneapolis on July 9-10 and some new standards, along with comments from Clinical Legal Education Association (CLEA), have been posted to the Standards Committee website.

One change is to the ABA Bar Passage Requirements, on which CLEA  just released a letter in opposition.  Their first concern is over the proposed increased passage percentage for law schools (from 75% to 80%).  CLEA argues that stricter requirements will only lead to increased “teaching to the test” which is not an effective teaching method for lawy students.  Furthermore, it stands inapposite to the other outcome measures that are geared toward acceptance of clinical teaching.

Additionally, CLEA also posted a chart comparing four different proposals for revising Accreditation Standard 405.  The chart is very helpful and builds on the Committee’s own efforts to do the same a couple months ago.

All of the documents are available on CELT.