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September 10, 2014

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Orin Kerr

Thanks for the interesting responses. A thought, made in response to no one in particular: When we talk about what students want, or what skills students should have, we're inevitably taking about tradeoffs. In the ideal world, students would get a deep understanding of diverse areas of law; top-notch practical skills involving many different practice areas; a degree from a very prestigious institution from which employers are eager to hire; and yet pay only a very low tuition. As far as I know, that combination doesn't exist. We're inevitably stuck making tradeoffs among these goals. That's why I'm skeptical that there's some kind of magic answer that we're just not seeing, or that we see but refuse to adopt.

Consider Scott's point above that pre-law students want more practical skills in law school. Let's assume that's indeed the case. But what if practical skills are expensive to provide, and are provided best by schools with a weaker employment prospects at graduation -- either because of history or because the employers are not impressed by the practical training? Are students willing to pay more for the weaker employment prospects? They may want more practical training in the abstract, but it's less clear what the demand is when the tradeoffs are more clear. Similarly, when employers say that they want "practice ready graduates," it's not clear what this means or whether employers are actually willing to value that over other things.

Barry

Orin: "We're inevitably stuck making tradeoffs among these goals. That's why I'm skeptical that there's some kind of magic answer that we're just not seeing, or that we see but refuse to adopt."

In many cases, that's a reasonable assumption. However, it's pretty clear that many law schools were happily riding a bubble fueled by loans and ignorance.

Barry

Orin: "Are students willing to pay more for the weaker employment prospects? They may want more practical training in the abstract, but it's less clear what the demand is when the tradeoffs are more clear. Similarly, when employers say that they want "practice ready graduates," it's not clear what this means or whether employers are actually willing to value that over other things."

One huge question for this decade is how employers will deal with the breakdown of the old system - 'hire smart people, and train them yourself, on the client's dime'.

Former Editor

"In the ideal world, students would get a deep understanding of diverse areas of law; top-notch practical skills involving many different practice areas; a degree from a very prestigious institution from which employers are eager to hire; and yet pay only a very low tuition. As far as I know, that combination doesn't exist."

While I agree that some of these are in tension, it seems to me that, minimally, the "degree from a very prestigious institution from which employers are eager to hire" should not be something students want that requires a curricular trade off by the school; At least, not for those schools which are already prestigious. And, if the top schools in the country all started offering a particular suite of training, it seems likely that other schools would start following suit.

Orin Kerr

Former Editor, when you say that curriculum and prestige "should not be" a trade-off, do you mean that in your perfect world it would not be a trade-off, or that you don't think it's a trade-off in the world in which we live? If the latter, I disagree.

Scott Fruehwald

Orin,

What about all the studies (Carnegie, Best Practices, Ca. Bar, Ill. Bar, NYC Bar, ABA Task Force) that say that law students need a more practical education? Do we just ignore them? Do you know of any rigorous studies that say that the traditional methods of legal education are better than experiential courses?

Orin Kerr

Scott, who is "we"? I don't think there's a universal answer to how the 200 or so schools should decide on the tradeoffs involved. I think the ideal would be for different schools to try different approaches and to see what works best, although it's easy for me to want experimentation when it's not my school risking its future on the experiment. My point is just that there are major tradeoffs involved here, and it's important to recognize that.

Scott Fruehwald

We is all the stakeholders. Of course, there are major tradeoffs. There are also major tradeoffs to keeping things the same. I don't see legal education reform critics talking about the tradeoffs of keeping things the same.

Dean Martin Katz has just posted an article on SSRN on the costs of reform. You can find it at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2486707.

Former Editor

Prof. Kerr,

I guess we must disagree, because I'm saying the latter (at least for the most prestigious of institutions). They Harvards, Yales, Stanfords, and Columbias of the world could totally remake their curricula and it wouldn't do a thing to the employability of their graduates because those grads will still have gone to those schools and have access to the alumni networks and historical cache of those institutions.

If your point is that faculty at those institutions will see such reforms as hurting the prestige of the school and that those same faculty would argue against (read: block) curricular changes on that basis, I agree with you. That will continue to happen. That there will be argument does not make those faculty correct that it actually IS a tradeoff or that it is an idealist position to say that those faculty are wrong in thinking so.

Deborah Merritt

I think the best way to deal with pedagogy, cost, employability, and the duty we owe clients and society is this: Turn the first 1-1/2 years of law school into an undergraduate major. I mean that literally--don't create a watered-down version of 1L, teach that material to college students, along with a half year of law school electives. The first half of law school is a terrific liberal arts major; indeed, we would play on our academic strengths by continuing to teach it that way to a more appropriate (in the 21st century) audience.

The BA in law would not allow graduates to practice law, but it would equip them wonderfully for the growing number of "JD advantage" jobs--and, for that matter, for any job that would otherwise employ a non-science-trained college graduate.

Law school could then be 2 years, including both advanced doctrinal work and a lot more experiential education. Although experiential education is expensive, and it currently lies at the fringe of legal education, we have developed considerable expertise in this pedagogy. Practitioners know how to practice, but we know how to *teach* through practice. As cognitive science shows, that's a distinct (and quite valuable) skills. If we grow our expertise in this area, we will benefit new lawyers and also help transfer that skill (teaching/learning through practice) to the profession.

This proposal addresses pedagogy by incorporating everything we currently do well (law as a liberal art, law as doctrine, and law as experiential education). It addresses employability by producing more people with a "JD Advantage" sort of degree and fewer people with a "licensed lawyer" degree. It addresses cost by allowing the first group to learn to think like lawyers as part of their BA tuition; the second group, meanwhile, obtain their degrees in six years rather than seven.

The proposal, finally, would introduce a degree of flexibility into legal education, allowing us to respond to whatever round of changes come in the next ten years.

Whatever anyone thinks of this serious proposal, I *love* this golf analogy!

Orin Kerr

Former Editor, here's a thought experiment.

Imagine one of the top 10 schools decides to totally change its priorities. The school -- let's make it Columbia, just to pick one -- decides to fire its faculty and instead hire practitioners. The new Columbia will only feature practitioner teachers, and it will only focus on practical training. The faculty will do no scholarship at all, and no one in the scholarly world will have ever heard of any of the professors. If you want a school with famous scholars as professors, or professors who are known to the top judges and Justices for purposes of clerkship recommendations, you go elsewhere: If you want a top-notch practical education from practitioners, you go to Columbia. And assume that the new Practical Columbia stays that way for (say) 10 or 20 years.

Here's the interesting question, I think: What happens to Columbia's reputation over that 10 or 20 years? I gather your view is that nothing would change: Columbia would stay Columbia. But I tend to think it would take a big hit. Law students wanting a clerkship, or maybe to teach someday, would go elsewhere. The rankings of top faculty in terms of reputation would exclude Columbia entirely. The "peer assessment" score that is 25% of the U.S. News ranking would likely drop dramatically, as among other professors Columbia would effectively no longer exist as an academic institution. I think it would lead to a dramatic drop in prestige.

Orin Kerr

(Oh, and I should add that when I mean "prestige," I mean not just among academics, but in the legal profession at large, which I take to include U.S. News rank, desirability among students, and employment options for graduates.)

Ray Campbell

For what it's worth, and this may be arguing against self interest, I think it is a fallacy to assume that faculty who have not practiced do not understand practice and that those who did practice always have a broad based understanding. I practiced for ten years, more or less, and all the same a lot of my knowledge of what lawyers do was vicarious. I would talk to other associates and partners, and hear what they had been doing, and that informed my picture of what lawyers do. I'm kind of social, so I had those conversations, but if I had just beavered away on my own work I would have had no reason to know what people in other deparatments actually did. Some faculty despise practice, I suppose, and others are just disinterested, but there are plenty who are pretty plugged in, either through ongoing contacts with former students or consulting. To cite one example, out of the Columbia faculty that Orin mentions, Bob Scott is a heavy duty scholar who so far as I know never spent a day as a law firm associate, but both when he was a professor and the dean of the law school I attended he seemed very tuned in to the realities of practice.

anon

OK

Once again, your view of "practitioner teachers," reeks of elitism. Your dire projection assumes a fact that doesn't exist in the real world: brilliant practitioners of the law who are both excellent teachers and accomplished scholars do not exist.

In fact, your views, which concededly have gained currency in the past twenty years or so, would have been so risible as to provoke questions about the speaker's ability wriggle out of his own cocoon, and not so long ago.

Barry

"Your dire projection assumes a fact that doesn't exist in the real world: brilliant practitioners of the law who are both excellent teachers and accomplished scholars do not exist."

No, it doesn't.

Orin Kerr

Anon, if you're looking for a professor who discounts practice and doesn't care about teaching, you're barking up the wrong tree (as I hope my resume shows). I'm just trying to describe the actual world we're in. Yes, legal employers are elitist: They have to choose from applicants largely on paper, so they use proxies like the law school a person attended and the grades a person received. We can condemn that, but I don't see the point in pretending it's not the case.

Scott Fruehwald

There are other realities. Several state bars are not satisfied with the status quo. California passed a fifteen-hour experiential requirement last fall. Illinois will hold new hearings on legal education shortly. Finally, the ABA just enacted outcome determination and a six-hour experiential requirement. I am sure that more state bars will act soon.

anon

yep.

The OK attitude has held sway, but the times, they are a changin.

Brilliant practitioners of the law who are both excellent teachers and accomplished scholars exist.

IMHO, if one can't just admit that simple fact, without launching into a sort of specious claim that a certain flavor of elitism is established and justified based on immutable norms, then, again IMHO, that person either isn't arguing in good faith or is deluded by hubris.

OK, you speak of "legal employers." One wonders whether you can hear how ridiculous and self-aggrandizing (and out of it) your generalization sounds? Legal education, guided by this sort of myopic view of the world, is faltering, for what should be obvious reasons.

Orin Kerr

Anon, no one is questioning that that they exist, much less refusing to admit it. There aren't many -- Kathleen Sullivans don't grow on trees -- but of course they exist.

anon

The crows nest is so tiny.

But, the practice of law is vast.

Hence, failure. Failure of vision. Failure in the operation and management of law schools.

Those in the crows nest are unable to fathom the sinking. They look to each other for reassurance.

For them, "legal employers" are only hiring based on USNWR ratings. For them, "practitioner teachers" are Kathleen Sullivan and a "few others."

These are the "leaders" ... How sad.

What a revelation these comments are.

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