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February 22, 2011

How the Law Schools Went Astray

By Walter Olson

wolson.jpgThis is an excerpt from Schools for Misrule, Legal Academia and an Overlawyered America, to be published March 1 by Encounter Books. Walter Olson, a senior fellow at the Cato Institute, is author of The Litigation Explosion and creator of the popular blog Overlawyered.com.

***

In his 1918 book The Higher Education in America, the gadfly sociologist Thorstein Veblen warned universities that they were making a mistake in their rapid expansion to include professional schools and related departments. These essentially vocational extensions of the university, he argued, put at risk "that disinterested intellectual enterprise which is the university's peculiar domain."

He reserved special disdain for the new vogue for academic business schools, which dealt in ideas that were "unscientific and unscholarly" and of a general "uselessness to the community." To impart skills in a field such as marketing was (he imagined) simply to give some clever members of the community an edge against others in the competition for wealth and power. What had that to do with the university's search for useful knowledge, beauty, and truth for its own sake?

Mortifyingly, Veblen dismissed law schools on similar grounds, as both intellectually unserious and of doubtful benefit to the wider public. A school of law, he declared, "belongs in the university no more than a school of fencing or dancing." Fencing or dancing? The insult can still sting after nearly a century, touching as it does on lasting insecurities felt in the legal academy. Has one somehow failed in seriousness if one's main accomplishment is to send people into the world trained very well in a certain set of skills? If graduates end up as ordinary, competent, comfortable lawyers conserving the wealth of affluent clients or helping the wheels of commerce spin, are they just as "careerist" as the business-school strivers Veblen so despised? Or was there some flaw in the sociologist's scornful logic?

Veblen's criticisms were not enough to reverse the trend, and after the Depression and World War II the accreditation agencies resumed their ratcheting up of requirements. "Soon after the war," writes Steven Teles, "the [Association of American Law Schools] and ABA began to increase their standards for accreditation, requiring the appointment of a full-time dean in 1949, a minimum student-faculty ratio and faculty size in 1952, and gradually restricting admission to students with college degrees." Some of the most significant changes increased the pressure on schools to hire more full-time faculty and cut back on moonlighting practitioners, the latter a resource particularly valued by urban schools with a less affluent student body. ABA standards instead pushed a model of tenured full-time instructors with summer stipends and other common academic perks, the overall effect being once again to select for those whose loyalty was not to the world of everyday practice.

Larger and More Homogenized Schools

One might have expected the tightening of standards to reduce the number of accredited schools, students, and professors. Instead the ranks of ABA-accredited law schools rose from 111 in 1947 to 163 in 1977. (It now stands at around 200.) "Between 1962 and 1977," notes Teles, "the number of full-time professors of law in the United States increased from 1,628 to 3,875, the great bulk of which growth occurred in the five years between 1967 and 1972." To put it differently, the constituency on the ground for academic law abruptly doubled in the five or so years to 1972. This was bound to have far-reaching effects, and it did. And in no small part because of the accreditation process, law schools would be increasingly standardized and homogenized along many of the dimensions that matter most.

law%202.jpgIn a law school fully oriented toward an academic model, certain things are expected. Not only will full-time faculty members beneeded, but those faculty will need to engage in scholarship. So the rapid rise in the ranks of faculty was sure to lead to a boom in research, conferences, and the output of law reviews, of which no self-respecting law school could afford to be without a few. "Law reviews are unique among publications," explained Northwestern's dean Harold Havighurst half a century ago, "in that they do not exist because of any large demand on the part of a reading public. Whereas most periodicals are published primarily in order that they may be read, the law reviews are published primarily in order that they may be written. . . . Large subsidies are therefore provided."

As early as the 1930s most of the characteristic vices of law review scholarship---circumlocution, elephantine attempts at humor, overuse of footnotes---were on recognizable display. Yale's Fred Rodell skewered them all in a celebrated attack: "[I]t is in the law reviews that a pennyworth of content is most frequently concealed beneath a pound of so-called style. The average law review writer is peculiarly able to say nothing with an air of great importance. . . . it seems to be a cardinal principle of law review writing and editing that nothing may be said forcefully and nothing may be said amusingly. . . . The law reviews would rather be dignified and ignored. . . . [I]t is not surprising that the law reviews are as bad as they are. The leading articles, and the book reviews too, are for the most part written by professors and would-be professors of law whose chief interest is in getting something published . . . because the accepted way of getting ahead in law teaching is to break constantly into print in a dignified way."

Meanwhile, Rodell noted, the students who slave away on the reviews "are egged on by the comforting thought that they will be pretty sure to get jobs when they graduate in return for their slavery," since making law review was one of the key credentials to be obtained in a law student experience. Little has changed since. With the triumph of the university-based model there came to prominence a new breed of high-level scholars who doubled as visible public intellectuals and even mentors of wide social movements, men such as Roscoe Pound, Felix Frankfurter, Zechariah Chafee, and others. In his 1914 address to the Association of American Law Schools, Wesley Hohfeld foresaw the day when a new elite of university jurists would have "a far greater share and influence than at present in prescribing for our [social] ills," a prospect unlikely to have displeased his later audiences.

Here Comes 'Sociological Jurisprudence'

Indeed, the series of movements in academic law that got rolling around this time had in common a guiding societal role for legal intellectuals. Pound's "sociological jurisprudence" set them up as evaluators of whether old legal rules fit emerging social policy. The Legal Realism movement, on the rise from the 1920s, added a sharp critique of Langdell's generation for its supposed "passive" and "formalist" view that judges should and could ignore underlying policy considerations and instead resolve cases solely by way of precedent, mechanical application of rules, and other purely legal grounds.

Gradually, the prescribed role of law schools was coming up in the world. Law professors of the more self-effacing sort had long taken for granted that their main task was to lay out accurately what the current state of the law is---since their audience would need to deal with that for now---and only incidentally treat the (presumably less well-settled) question of what the law ought to be. Even if commentators disagree strongly with the direction the judges have taken, on this view, they need to keep close to the line of cases, like a ballroom partner who follows closely with each step even while convinced that the lead is headed off in the wrong direction. Legal Realists favored a more frankly adversary relationship, pulling back from the embrace of a hidebound judiciary in favor of more openly poking at its errors. To borrow the Veblen imagery, they were beginning to make law school less like a school of dancing and more like a school of fencing.

In the Thirties, progressive-minded law professors mostly backed the Roosevelt Administration in its expansion of the power of the public sector as against the private---Yale dean Charles Clark, one of the best-known New Dealers in legal academia, famously proclaimed that "the corporation lawyer of the past decade must give way to the public counsel of the next"---as well as in its series of spectacular confrontations with the Supreme Court. And after many pitched battles, they believed they were destined to win on both fronts: by Pearl Harbor Day, government agencies had taken over the direction of much of the economy, while the Justices had meekly submitted to FDR to avert his Court-packing threats in the famous "switch in time that saved Nine." The stage was set for the thunderous reception accorded Harold Lasswell's and Myres McDougal's 1943 Yale Law Journal article, "Legal Education and Public Policy." Harold Lasswell was a celebrated New Dealer and political scientist whose jobs under FDR had included directing wartime propaganda, while the Yale professor Myres McDougal enjoyed a long career as an authority on international law. Influenced by the Legal Realist movement, both believed old rules needed a massive new infusion of social planning and expert rationality. Their remarkable proposal was to reorient the law school curriculum of today toward the radiant new legal world of tomorrow---whether judges and lawmakers were yet on board with the details of that world or not.

law4.jpgLaw schools, they observed, still drilled students in such humdrum and half-outdated matters as "Bills and Notes" and "how to replevy [regain possession of] a dog." What was needed instead was a curriculum "oriented toward achievement of democratic values," as determined "in reference to social objectives." That would mean de-emphasizing such bastions of private law as contract and property, which they sniffed at as "much-favored instruments of the laissez-faire society." If a course in property law were needed, they asked, why not take land-use planning or the development of public housing projects as its jumping-off point?

Lawyers Would Be on Top---the Decision-Making Class

Even after the Supreme Court's capitulation, the constitutional law over which New Dealers had stumbled remained recognizably intact in the textbooks. Lasswell and McDougal complained that "the so-called public law courses are still organized with too much deference to 'separation of powers,' 'jurisdiction,' 'due process,' 'equal protection,' 'interstate commerce,' etc." Trusts and estates? Schools should realize that the emerging society would want to keep to a minimum the role of private inheritance, though it might tolerate some little portion of it as a supplement to Social Security and similar plans. Insurance law? A mostly obsolete specialty, since we moderns recognized that most forms of insurance should be absorbed into the public sector. Local government law? Time would be better spent instructing students on innovative forms of regional government, such as the Tennessee Valley Authority. And law schools should recognize the need to train lawyers in entirely new tasks that would fall to them in the new world, such as that of determining an appropriate division of income among different sectors of society. In sum, legal education should take upon itself the job of "conscious, efficient, and systematic training for policy-making."

One thing was flatteringly clear, if casually assumed. In tomorrow's world, lawyers were to be on top as society's natural decision-making class---as its technocratic managers, if not outright philosopher kings. Unlike others on the scene---such as, for instance, the general run of clients---lawyers were the ones who would have been trained to recognize and evaluate higher-level policy considerations. And law schools, rather than wasting time on the rules concerning Bills and Notes, would assume the invigorating role of shaping future rulers. In one of the more ingenious parts of the scheme, if the professoriate would just agree to stop teaching all the old concepts that stood in the way of progress by limiting the government's wise exercise of power---private property, inheritance, separation of powers, and the rest---a generation of lawyers would grow up who would no longer take the concepts for granted as mental furniture, and in time, hidebound though it might be, the judiciary would stop according these concepts such undue deference. The only thing missing was the phrase "dustbin of history."

Lasswell and McDougal's piece was destined to become by far the most cited law review article ever published on the subject of legal education. Even at Yale, however, no one made any serious effort to implement its program whole. Had a school done so, as soon became clear, it would have equipped students neither for a career at the highest levels of national policymaking nor for a conventional law practice. A quarter century later, Thomas Bergin in a Virginia Law Review piece explained some of the reasons why. "The plain fact is, though it may have become plain only after the publication of the article, that training in policy appraisal is an extraordinarily complex and demanding business. Indeed, it is so complex and demanding that it would be difficult to imagine any student emerging from law school with anything more than half-baked policy notions unless he had devoted his full three years of study to the acquisition of policy-appraisal skills." To go far down the policy-training road would require sad compromises in the thoroughness of training in more traditional legal skills and doctrine. Wrote Cornell's Roger Cramton: "The worst of all worlds would be to abandon what we do well for things we do only badly."

Less Need for Lawyers, Because Litigation Would Dwindle

law1.jpgThere was another problem, too: fashions in policy keep changing. Expertise in policy areas like regional government and public housing planning, to say nothing of the centralized allocation of income, were to become less salable job skills as time went on. Meanwhile, the various constitutional concepts that Lasswell and McDougal complained got too much emphasis in the study of public law, from separation of powers to equal protection to the distinction between interstate and intrastate commerce, stubbornly remained (and have remained to this day) vitally important in real-life applications of law. In other words, even were "policy" the sole concern of graduating lawyers, the law students of Lasswell and McDougal's era would still have been better off focusing not on the then-current policy preoccupations of Washington, D.C. luminaries, but on the principles the old-line professors had gone right on teaching from their Langdell-style treatises: the Constitutional allocation of powers, the protections afforded by the Bill of Rights, and the fundamental legal principles of ownership, exchange, and duty.

Parenthetically, there have been many other attempts over the years to base legal training on forecasts about which areas of practice would flourish in the future and which decay, most of which have met a similar fate. The 1950s and 1960s saw predictions that there would be less demand for lawyers' services in the coming society because of the development of social policies averting the need for litigation, such as no-fault divorce and accident-compensation schemes. That was a very bad prediction indeed. Nor has legal academia typically been prescient in forecasting booms in particular areas of law. Advanced thinkers in the 1970s predicted a boom in energy law, which never came, and failed to predict a boom in trademark licensing law, which did come. Respected authorities predicted that group and pre-paid legal services would soar in popularity (they didn't) and that most socially salient litigation would in future come to be filed in federal as opposed to state courts (it hasn't). The older idea of general-purpose legal training---teach students how to think like lawyers, fit them out with a general skills kit and a wide fund of diverse knowledge, and let the world of practice take it from there---began to look pretty good.

Even as its details were forgotten, however, the Lasswell and McDougal article helped set the tone for much of what was to follow at elite law schools. It comforted many professors with the idea that their students would be running the world, even as it emboldened them to make clear in the classroom which contemporary holdings of courts were progressive and good, and which deplorable and bad. Why be deterred by empty charges of indoctrination? Wasn't the older manner of law teaching, when you got down to it, its own form of indoctrination? Law-as-it-should-be was up, prestige-wise, and law-as-it-is down.

Yale Decides That Property Law Isn't That Important

In the 1950s, Yale Law School announced a new policy: it would no longer require its students to take a course in Property. This was an almost unheard-of departure from the accepted law school curriculum: property law was a cornerstone of the bar exam; it figured vitally in many areas of real-world legal practice; and to top it all it was a notoriously difficult subject. But so smart and agile were Yale's students, it seemed, that if need be they could master its details in their spare moments or in last-minute cramming before taking the bar. And meanwhile more class time would be freed up to talk about truly stimulating and interesting things.

No other school followed Yale's lead, which actually served to confirm the New Haven institution's enduring place at the very top of the law school prestige heap. The paradox had been established: Yale was the most exclusive and desirable place to study law, and it was also the school where you might wind up learning the least law. It all prefigured the Yale Law School "anthem" composed by one wit at a later date, set to the tune of "Don't Know Much About History":

Don't know much about Property,
Don't know much about Bankruptcy,
Don't know much about Secured Transactions,
Don't know how to file legal actions,
But I do know Philosophy,
And I know that with my Yale degree,
What a wonderful world this could be.

Famously, Yale law professors could come off as endearingly clueless when faced with actual legal problems to solve, as with the dean of the school who found himself needing a real-world temporary restraining order: "It may be a little late in the day to tell you this," he confessed, "but I have absolutely no idea how to get a T.R.O." Another Yale law prof briefly made national news during a front-page nomination battle when he admitted (or at least took the public posture of admitting) that he had no idea one had to file federal tax paperwork when employing a domestic nanny. It was as if the professors at the most admired medical schools were the ones most at a loss when confronted with an actual sick patient.

There is a limited supply of the sorts of creme-de-la-creme students who can engage in round-the-clock discussions of policy and political philosophy while also cribbing the standard law school curriculum in odd hours. And so quite evidently most law schools are destined to fall short if they try to be Yale. Yet powerful forces influence them to make a show of trying anyway. The upshot is that School #77 in the U.S. News standings feels obliged to do its best impersonation of a little Yale, complete with interdisciplinary centers, globetrotting star professors, and unreadable theoretical output. The accreditation pressure to adopt more academic models also played a role here, as did faculty's own wish to move up to more demanding and highly ranked institutions. (It's seen as normal for a law professor to pull up stakes after a few years to accept an offer from a slightly higher-ranked school halfway across the country--- one reason America's legal professoriate tends to be a "national" corps, with surprisingly little in the way of regional flavor.)

A Compulsion for Salmon-Like Upstream Leaps

As Veblen himself described in his famous theory of "conspicuous consumption," people will go to strenuous, costly, and even self-defeating lengths to pursue status in social hierarchies. He would have found much to recognize in the behavior of American law schools, much of whose history can be understood as a series of persistent, salmon-like upstream leaps in quest of prestige. To say that law schools behave like debutantes at a cotillion would be deeply unfair to debutantes, who generally do a much better job at keeping jealousy and competitiveness in check.

law.jpgThe underlying problem is that legal education in America--- much more so than, say, medical education---arranges itself according to an exquisitely calibrated and widely agreed-on hierarchy of quality and status. The student with an indifferent record from a low Tier I school will come into opportunities unavailable to the student with a sterling record at a high Tier II, let alone a Tier III. The decisions made by all the involved parties help reinforce the stratification process. Applicants tend to sort themselves among schools with great efficiency by following the oft-given advice to enroll in the highest-ranked school at which they are accepted, whatever its geographic or financial pluses or minuses. In turn, the ranking of schools depends heavily on the test scores of the students who attend, so schools that have recently done well tend to continue to do well. School administrators themselves, whatever their declared devotion to egalitarian ideals, are supremely aware of the status distinctions, and generally act as if their prime goal in life were to maximize their rank in the standings, with not a few of them engaging in rather grubby dodges and cheats to inflate their U.S.News standings. (Roger Cramton has noted that even law schools with religious affiliations, which "might be thought to have a special mission," nearly always behave on a practical level as if their goal were to compete for prestige.) A tiny slip in the rankings can spell heartbreak for administrators; a minor advance can help make a career.

The hierarchies among scholarly subject matters and approaches are less clearly defined than the hierarchies among schools, but real nonetheless. Interdisciplinary work, theoretical originality, and startling counterfactuals have in recent decades tended to outrank sedate "case-crunching," judicious synthesis, and treatise compilation. It is prestigious for a school to acquire recognized authorities on topics like the death penalty, constitutional interpretation, and the doings of the U.S. Supreme Court; it is not prestigious to acquire specialists in non-capital sentencing, statutory interpretation, and the doings of state supreme courts. There is little correlation between the prestige value of a body of law and its importance to the general public; most law schools shun traffic law as a subject despite its exceedingly high salience to the ordinary citizen and not inconsiderable intellectual interest.

The ventures into competitive prestige-seeking often run into diminishing returns. Take, for example, the seemingly endless proliferation of law reviews. Harvard can more or less get away with running fourteen student law reviews where it once ran one because its student body boasts an unusual depth of editorial talent and because journals with the Harvard name can have their pick of many outside contributors. The many humbler law schools that get into the act will inevitably struggle. As their verbal tonnage continued to mount, at any rate, the influence of the law reviews on actual lawyers and judges began declining asymptotically toward zero. Between the 1970s and the 1990s, a time in which the volume of opinions by federal courts was rising sharply, the number of citations to the Harvard Law Review in those opinions dropped by more than half, from 4,410 to 1,956, with a further steep fall-off in the decade since then. There is no reason to think other law reviews have fared better. Meanwhile, the paid circulation of leading law reviews has been declining steeply for decades, both before and since the advent of electronic publishing: between 1980 and 2009 that of the Harvard Law Review fell from 8760 to 2029 (though as late as 2009 its website was claiming 8000); Columbia, from 3795 to 1364; Michigan, from 2950 to 711; and so on.

A Need to Focus on Transgender Wiccan Inmates

One reason is that the target audience of the reviews has been reduced almost entirely to academic peers and no longer includes the practicing bench and bar. When law review authors deign to analyze recent court decisions it is most likely to be cases that interest colleagues, students, or reporters. As one lawyer complained in an online forum, the law reviews will furnish plenty of relevant commentary should one's case involve a transgender inmate assigned to the wrong-gender prison and improperly prevented from practicing the rites of Wicca there; but "if I want some assistance on the problems with offsets when multiple uninsured motorist carriers [are] involved, something that implicates 5--10 of my cases a year, there might be one or two [articles] out there, but [they] are way out of date."

image.pngThe missed opportunities from the disconnect between the law reviews and the world of practice loom especially large on a topic like pretrial discovery. As practicing lawyers know, the discovery process, in which litigants seek to compel each other to hand over documents and answer questions, has become the great runaway cost center in litigation, far more expensive than courtroom practice itself. The anticipated costs and burdens of discovery often shift the outcome of cases well away from what are smilingly called the merits. And yet law reviews accord remarkably little attention to discovery as a topic; one might riffle through thousands of pages at a stretch without finding a mention of the subject.

By the Nineties, critiques of the disconnect from practice were emerging from within the walls. In The Lost Lawyer: Failing Ideals of the Legal Profession (1993), the Yale law dean Anthony Kronman indicted legal academia for its infatuation with brilliance over deliberativeness, its "contempt for the claims of practical wisdom," and its dismissal of older traits and skill sets such as empathy, broadness of experience, and dedication to clients' goals and interests. With the advent of "law and" interdisciplinary approaches, once you had learned a little economics, or sociology, or gender theory, or semiotics, you could proceed to reduce the law of collateral estoppel or plea bargaining to a three-factor model, or a template of sexual oppression, or a word game---and "the vast storehouse of accumulated precedent, to the extent that it conflicts with the requirements of natural reason, is nonsense to be discarded with impunity." In Beyond All Reason: The Radical Assault on Truth in American Law (1997), Daniel Farber (Minnesota) and Suzanna Sherry (Vanderbilt) took aim at deconstructionist and identitarian fashions. As Sherry noted, figures like John Marshall had given way in the curriculum to theory-heads like Harvard's numbingly abstruse Roberto Unger, a favorite of the Critical Legal Studies (CLS) crowd; a "lawyer who reads Roberto Unger instead of John Marshall, however, is unlikely to be able to function as a lawyer." The Harvard law professor Mary Ann Glendon saw in many of her colleagues' work "a growing disdain for the practical aspects of law, a zany passion for novelty, a confusion of advocacy with scholarship, and a mistrust of majoritarian institutions."

Equally significant, the unmooring of law schools from the actual world of law was being noticed outside the walls. "Law schools and law firms are moving in opposite directions," observed the federal judge Harry Edwards in a widely noted 1992 speech. He added that "many law schools---especially the so-called 'elite' ones---have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and pedagogy." Practicing lawyers were losing the benefits of the ethical as well as operational guidance that a more down-to-earth legal academia might have offered.

Matters have improved in the decade or two since then, and the credit should go not only to highly visible critics like Kronman, Sherry, and Edwards but also to an unsung body of critics, namely students themselves. All along, in their evaluations and course choices, they had exerted a clear preference for the grounded over the airborne, for black-letter law over ideology, for mastery of useful skills and topics over arid metaphysics. Say what you will about
careerism, but it just might have saved the day.

---------------------------------

Walter Olson, a senior fellow at the Cato Institute, is author of The Litigation Explosion and creator of the popular blog Overlawyered.com.



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