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November 20, 2011

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Jeff Lipshaw

See my unduly lengthy comment here: http://prawfsblawg.blogs.com/prawfsblawg/2011/11/a-recipe-for-trashing-legal-scholarship.html#c6a00d8341c6a7953ef01539350ce65970b

Steve Diamond

As I told a colleague this AM who asked for my reactions:

I just finished reading it. I found it more than a bit misleading. Every
business org student learns some basics like how to file certain documents
and certainly any one who takes a course in M&A or Advanced Corporations
learns precisely what the opening paragraphs say was missing.

I think strong clinical experience is a good idea but the old saw, nothing
teaches like experience, is important to remember. Nothing we can do in
law school will ever replicate the experience of standing in front of a
judge for the first time or entering into a negotiation over the financing
of a startup.

And in the long run attention to basic legal theory and principles is far
more valuable than is made clear in the article. Breyer's comments are
particularly unwelcome - someone should point out how abstruse his pieces
on antitrust theory were!

(And I should add I suppose that this is a view of someone with both a PhD and five years experience as an associate in two major law firms prior to teaching.)

Retired to teach

I'd dispute Steve's comments about business org students learning basics. That may be true at some schools and with some professors, but at schools that compress this subject into 4 course hours (in place of the 2 semester, 6-7 unit courses that were once available) taught by professors without relevant real world experience, it is nigh on impossible for students to learn any practice points amidst the massive amounts of theory and caselaw they must cram for the final. The same is true for M&A courses that emphasize economic and financial theory, and the typical 3 unit securities survey course. That said, there are advanced corporate/M&A/securities/business planning courses at many schools -- but not taken by enough students -- that have experiential components that do a good job of introducing students to things that junior lawyers really do.
But as someone who was "sullied" by a quarter century in the trenches, I know the new lawyers depicted in the article are the norm, not the exception. Most first year lawyers (and I am talking cream of the crop students) have never read a corporate or securities statute with care, have never prepared a corporate form or dissected a contract, never experienced a data room, are easily bored by detail,and think contractual boilerplate means you never have to read it. The reality is that a trained paralegal is vastly more valuable to a client than a typical first year lawyer, except when it comes to legal research, which isn't a common feature of corporate practice.


Steve Diamond

Let's assume that the last few sentences of "Retired's" post are true. And I would certainly agree that, for example, an experienced corporate paralegal is more valuable at some things than a first year associate. These might include preparing incorporation documents, a stock option plan, etc. And no doubt some good paralegals could supervise first year litigation associates in document review or deposition summaries.

But is it possible or appropriate for law school to train law students to do those things?

In fact, because firms do have experienced paralegals then the premise of the Times article is also incorrect. Clients aren't paying associates to do things that paralegals can do.

I think the first years are being trained to take on levels of responsibility that exceed what a paralegal is either trained or capable of doing - negotiating the terms of a financing or acquisition, for example. In the long run the model works because it helps the firm - and clients - figure out who really has the capability and motivation; those that do quickly advance; those that don't get bored of being glorified paralegals and go do something else with their lives.

In any case, how could law schools possibly replicate that actual real world experience? The clinics are one effort but modest and in many ways not realistic. And if law schools became glorified training programs for technique what would happen to, for example, the ability to understand that behind the terms of a bond indenture is actual case law and many years of common law activity? And if they don't know that history (and theory) then how good can they really be at what they are supposed to do?

In other words my argument is that any criticism that says case law, theory, etc. is somehow not practical misstates what the practice of law is all about.

TJ

"there are advanced corporate/M&A/securities/business planning courses at many schools -- but not taken by enough students"

I think this is one aspect of the debate that tends to be overlooked. Much of the current emphasis on theory over practice is dictated by revealed student preferences as much as anything else. Student love subjects, e.g. con law, that have very little relevance to day-to-day corporate practice. Thus, to the extent that a law school was inclined to make sure its students were all knowledgeable about the minutiae of corporate practice--which despite frequent disclaimers seems to be the logical endpoint of the arguments made by Segal et al.--it will require a large amount of forced-feeding of materials that students do not like. For a movement that is supposedly founded on student best interests, it seems remarkably cavalier in its attitude toward student preferences.

Journalism Critic

It seems journalism schools are failing to teach basics, based on the shoddy work of Mr. Segal in this piece. I assume it is fair to brand the entire journalism school industry for failure because Mr. Segal makes such basic factual errors. With all the legal journals out there, he has to use an example from a philosophy journal and make it seem like all legal scholarship is like that? And he takes one newbie lawyer not knowing the answer the partner is looking for as evidence that he did not learn anything practical in law school?

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