Scalia On 2 Year JD, Required Courses, And The Future Of Legal Education

Thanks to Will Baude, over at VC, for posting some of Justice Scalia's comments in his William & Mary College of Law graduation address.  Two particularly interesting comments by Scalia:

1. A JD ought not be a trade degree ("one can practice various aspects of law without knowing much about the whole field. I expect that someone could be taught to be an expert real – estate conveyancer in six weeks, or a tax advisor in six months. And maybe we should train such people — but we should not call them lawyers.")

2. If law schools want to justify a three year experience (and he thinks they should, albeit at lower tuition and with slimmer faculties), they ought to consider mandating more core courses.

He cited Harvard Law's old curricular requirements:

The second - year curriculum required Accounting, Administrative Law, Commercial Law, Constitutional Law, Corporations I, Taxation, and Trusts — although the Course Catalog contained the following generous exception:

            The Law of International Transactions and Relations or Labor Law may be substituted for Commercial L aw by second year students. Those electing this substitution will normally be required  to take Commercial Law in the third year. On a showing of special need, a second year  student may  make other substitutions with the permission of the Faculty Chairman for the second year. 

Even the third year was not entirely elective. The Course Catalog said :

        Third year students are required to take the course in Property II unless they have taken it previously . Students who took any course in the second year in lieu of Commercial Law are required, in the absence of special permissi on, to take Commercial Law.

He then concluded:

Since the modern legal academy appears not to believe that there is a solid and significant core of courses that entitle someone to be admitted to the profession of law, it is small wonder that there are calls for shortening law school to two years. If and when that happens, the shrunken faculties will have only themselves to blame.

Will's full post, with more excerpted comments, is here.  Scalia's full  speech is here.

Comments

[Jojo]

Law faculty cannot tout their one and only claim to utility in education, "teach you to think like a lawyer" without a generally accepted and empirically provable concept of what this entails. Fortunately, the state bar of just about every state tells you what they want you to know in order to practice as a lawyer. It includes things like evidence, corporations, family law, commercial paper, etc.

The days of funding law profs to be general smarty-pants naval gazers are over. No one wants to pay $150,000 in borrowed money for a post-undergraduate course in advanced liberal arts. You either get the benefit of the profession -- utility -- with the burden of preparing a limited market of students to enter it by those who know what it means to be in it; or, you get to teach general law-related liberal arts courses to the masses and get the benefit of the arts -- knowledge, inquiry, and analytically critical thought -- with the burden of having to do it on a budget with little hope for immediately remunerative student outcomes to pay for it.

Law profs, you no longer get to have it both ways. Unlike Scalia, I'm not saying one is better than the other for those we'll call "lawyers." It just upsets me to know end to see what the current system is doing to our young people, and really our above-average young people.

[Jeff Harrison]

I like things simple and liked it when I could believe I disagreed with everything Scalia. This complicates things, but only a little.

[Former Editor]

I feel the same way. Reading this, and a few of his 4th amendment opinions, results in some cognitive dissonance.

[JM]

Scalia gets it right. You go to law school to learn specific information, not to "think like a lawyer." There is no such thing as "thinking like a lawyer," as opposed to thinking like an engineer or thinking like a doctor. There are just right (or better) answers to important questions, and a current body of information that constitutes authority until proven otherwise.

There are way too many faculty members at law schools. A school with 800 JD students could get away with having 30 full time faculty members. That would drop costs dramatically.

Unfortunately, Scalia never addresses the real problem, which is that there are still way too many people enrolling in law school each year. Hopefully it falls to about 20,000/year. When the average unemployed law grad can put out a resume and get a response, we will be in a better place.

[Steve Diamond]

For some reason known only to Justice Scalia, he ignores (as do many critics of law school) the California legal education market, despite its large size. In California you do not need to go to law school for even two years much less three, or pay tuition at all to a law school or to law professors. You can apprentice. And there are a range of other alternatives including non-ABA law schools as described here some months ago by the dean of Monterey College of Law. Salaries for law faculty actually scale according to their accreditation status and ranking, being the highest at the highest ranked schools. If a prospective student does not agree with that scale they are free to skip law school altogether or attend a Cal Bar accredited school and pay much less. Interestingly there remains reasonably healthy demand for the most expensive options at schools that pay the highest salaries.

[anon]

It seems to me that Scalia's points are being oversimplified.

As to the "thinking like a lawyer" I don't think Scalia would disagree that this ability is the key to good lawyering, though the portions of his talk quoted above don’t seem to relate to this question (and, if they do, they point principally to acquiring broad subject matter expertise, not “thinking like a lawyer.”)

The ability to anticipate legal decisions by governing authorities in borderline or doubtful cases is the key attribute possessed by attorneys. This is true whether the attorney acts as an advisor, a litigator or a transactional attorney. Litigators shape the resolution of disputes – disputes often based on questions that have no "correct" answer. The hallmark of a superlative legal advocate's skill is to anticipate a plausible outcome in the best interests of the client. The ability to discern when and if such situations might arise - and plan accordingly to avoid them - is the hallmark of the lawyer as facilitator: of contracts, of business, and ultimately, the very rules of the road (i.e., policy).

To learn these skills in order to practice effectively, one must study the work of the masters. Picasso wasn’t born a “Picasso.” No one is born a great physicist or surgeon or chef or attorney. Studying the law is (or should be) the means by which students learn how effective lawyers lawyer. This knowledge can only be obtained by gaining a solid foundation in the various foundational subjects of the law: contracts, torts etc. – hence, the first year curriculum. Scalia would broaden this base, it seems, but he also cautions that the purpose of this broadening is not to teach students to perform specific and narrow practice routines.

If the lessons proposed by Scalia are properly learned, and if law students are afforded an opportunity to have some practice – just as doctors practice surgery, chefs practice cooking, etc. - then a "legal education" will have been provided. All this isn’t all that difficult to understand.

But, increasingly, persons who are in control of legal academia appear to be unable to grasp the basic purpose of a legal education. They tout obtaining jobs in every area other than the law to cover up the failure to train attorneys to meet the demands of a dynamic market. And, to further this misguided thinking, they seek to turn a law school into a mini-university, where all subjects known to humans are available for study, and taught by JDs posing as specialists in fields other than law (or, almost worse, actual Ph.D.s in subjects that have nothing to do with legal studies other than a claimed "intersection" - a meaningless ruse as every subject "intersects" with law).

We can see the evidence of this at every turn. Not only declining enrollment met by and large by true indifference in legal academia as to every consequence but the potential effect on their own positions, but proposals to seek outside research funding, just as the other departments of the university do. In the view of so many now, we should consider economists, historians, philosophers, physicians, social scientists and meditators to be the greatest additions to the faculties of law schools.

These persons - hired into legal academia in large numbers - have no meaningful connection to and affinity for the practice of law. They are taking substantial steps toward permanently changing what most of us understood (and still understand to be) a “legal education.” Whether this group - because of their self-regard, arrogance and hubris - will damage legal academia to the point that only the oldest law schools survive, remains to be seen.

[Anons]

Anon,

Do you have any evidence for the claim that non-lawyers have been "hired into legal academia in large numbers?" My impression is that this has been confined to elite law schools and that lower ranked schools - precisely the law schools that many on here claim should be shut down - do not employ non-lawyers.

Thank you.

[anon]

I said nothing about "non lawyers," anons.

Not sure how you are reading the comment.

The trope that begins "Do you have evidence ...?" is an overused device in the FL; here, you are asking for evidence of a proposition never stated.

As stated, I had in mind "JDs posing as specialists in fields other than law (or, almost worse, actual Ph.D.s in subjects that have nothing to do with legal studies other than a claimed "intersection" - a meaningless ruse as every subject "intersects" with law)."

I suspect you realize that the referenc3ed Ph.D.s typically have a J.D., and often, did a brief stint in BigLaw, involving highly scrutinized, tightly supervised low-level experience.

[anon]

From Scalia's remarks:

"It is also well known that many of the courses from which the student may choose have a distinct non-legal flavor, to say the least: from “Effective and Sustainable Law Practice: the Meditative Perspective” and “Elegance in Legal Thought and Expression” at Berkeley Law School, to “The Philosophical Reinvention of Christianity” at Harvard, to “Contemporary Virtue Ethics” at Chicago. Even the traditional first-year courses—torts, contracts, and the like—seem to be going out of style. Many schools now offer first-year students one or two “electives” to spice things up a bit. At Northwestern University School of Law, for example, 1Ls may choose two elective courses among options that include “Law and Psychology,” ... ."

[scandalous]

I'm curious, do the law professors here agreeing with Scalia that law school should remain 3 years also agree with these statements:

"And cutting back on law-school tuition surely means
higher teaching loads. . .When I got out of law school, the average teaching load was almost 8 hours per week. Currently it is about half that."

And...

"And last but not least, professorial salaries may have to be reduced, or at least stop rising. Again, not the end of the world. To use Harvard again as an example: Faculty salaries have much more than doubled in real terms since 1969."

?

[Anon]

Do the law professors here agreeing with Scalia that law school should remain 3 years also agree with these statements:

"And cutting back on law-school tuition surely means
higher teaching loads. . .When I got out of law school, the average teaching load was almost 8 hours per week. Currently it is about half that."

And...
"And last but not least, professorial salaries may have to be reduced, or at least stop rising. Again, not the end of the world. To use Harvard again as an example: Faculty salaries have much more than doubled in real terms since 1969."

Speaking as a law professor: Yes and Yes.

Neither is the end of the world for me personally. The first just isn't a big deal. I like teaching and would still find plenty of time to write.

The second is more significant for me personally, but I'd still make enough to support my family and more than most workers. (Although commentators do wildly overestimate how much law professors outside of HYS etc. actually make).

The problem isn't a personal one: rather, is a "first mover" problem. The first law schools to move in these directions (and there are some who already have) will lose some (but not all) highly capable faculty to other schools who give them better deals in these regards. Those schools that lose such faculty then fall in the US News rankings, and are then derided by students and scam bloggers as "bottom tier" (notwithstanding the latter's professed desire to reform legal education, they still adhere to these notions of prestige, as driven by US News, which largely measures (1) how much money a school spends and (2) the esteem in which fellow academics hold a school.). Then, when said schools are perceived as not placing students well, that will be attributed to their lack of prestige, which would have come about by adopting the reforms advocated above.

[anon]

The USNWR ranking system makes a convenient target, but, the hierarchy is what it is because of forces that long predated it.

The following paper is instructive, especially for those who believe that there is no crisis in and no movement to reform legal education:

Enduring Hierarchies in American Legal Education
Olufunmilayo Arewa, Andrew P. Morriss & William Henderson
UC IRVINE L. REV., forthcoming (2013)

[scandalous]

Appreciate your candor, Anon@2:01, though I think it is just not plausible that professors will abandon one school for another because in the vast majority of cases no school will have openings for anyone but the utter elite, who are in almost all cases already at HYS and likely safe from salary downgrades. There is a surplus of law school professors at all career stages.

[anon]

Anon@2:01 here.

You're most welcome. I agree that in the current constricted lateral market for law professors, en masse departures of faculty just due to moderately increased teaching loads (back to what was the historic norm at most schools until about 15-20 years ago) alone is extremely unlikely. However:

(1) Increased teaching loads, *plus* 1/3 to 1/2 reductions in salary (which seems to be the premise of the relevant portion of Justice Scalia's remarks) would have a more significant effect;

(2) In any event, I'm not really concerned about en masse departures, just speculating on the effect of significant increased teaching loads and significantly reduced salary at the first mover school(s). My point is limited: market dynamics are such that at the first schools to take serious action to go back to 16 credit loads and reduce pay by 1/3 to 1/2, it's reasonable to believe that the most mobile faculty members (i.e., the most accomplished teachers and scholars) would look to leave a first-mover school for an opportunity at a school that has not (yet) taken such steps. All I'm really trying to point out is the problem of being the first-mover, given the perforce lack of collective action. Law professors are, in general, rational maximizers like everyone else, so putting aside things like family mobility constraints or particular aspects of a school that make retention more attractive (like a highly-regarded Center in one's area of expertise), they will be inclined to seek better deals elsewhere if their current employment becomes too unattractive. And if you're the first-mover school, there are an awful lot of other "elsewheres", even in a constricted market.

(Tangentially, although I used the term repeatedly myself (as did Justice Scalia), I really dislike the phrase "teaching load," which makes it sound like a burden we must carry, rather than a highly enjoyable part of a pretty fun job.)

[John Thompson]

@anon/9:22 p.m.:

Reducing sticker price tuition was unthinkable also, until suddenly it wasn't any more. To these most mobile faculty members, good luck finding jobs equal to your talents and dignity.

[Kyle McEntee]

If schools increase teaching loads, who is taking all of these new classes? Seems to me that increasing teaching loads is a consequence of other decisions, not a solution.

[JM]

Kyle,

I think the point is that there would not be new classes. There would be fewer faculty teaching the same number of classes. That would result in significant savings. High faculty/student ratios have added significantly to budgets.

[Kyle McEntee]

That's definitely what anon was getting at. My point is that increasing teaching loads isn't the solution, but a consequence of other solutions (decisions)--namely, decreasing the number of faculty and telling the remaining faculty to teach more. It may seem like a meaningless distinction, but I think it draws attention to the fact that deans cannot snap their fingers, tell people to teach more, and then see cost savings. They need to get rid of people first -- and a lot more people than schools are currently shedding through attrition and selective layoffs.

[Former Editor]

"They need to get rid of people first -- and a lot more people than schools are currently shedding through attrition and selective layoffs."

Agreed. To stay viable, a number of schools may need to start shedding their older, higher paid (and tenured) faculty members. I think in the next few years we are going to see just how much the ABA cares to get involved in that process. My guess: not at all.