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December 27, 2015

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terry malloy

"maintaining a bar license can be expensive. Someone has to pay for it."

Lawline - online CLE - 199 yearly unlimited subscription (and this is retail. it's likely less for an institution).

NYS bar dues - 199.50/year (399 for two years.)

400$ to stay licensed in the profession you claim to prepare your students to join.

guf-faw.

[M][@][c][K]

25 years ago CLE was an interesting racket/scam. The law schools promoted it because, well, it was a nice little earner for faculty, who could charge for it. In many big firms the partners liked it because it was a tax deductible vacation/junket, wives/mistresses/girlfriends optional.

On the latter I'm not joking - there were deals where you went to the Virgin Islands, or some resort, cruise, all found (food, drink etc.) - business class (but they threw in a free companion ticket) - people went to the conference room in the morning signed in and simply slid away to play golf, etc. Mandatory CLE made it a business expense, but one I remember the associates not getting, we had monetary caps on our CLE. The profs giving these courses had little to do.

anon

Many states either exempt profs from CLE, or, award generous CLE credits for teaching (e.g., twelve times the credit hours associated with a law school course). The CLE debate is a canard, as is the bar dues argument.

Of course, law profs should be required to be members in good standing of the bar, and further required to devote many hours each year to pro bono activities. These activities need not involve representation of clients in court, or, for that matter, representing clients at all. Bar committees, legislative task groups, etc. could all benefit from the expertise that law profs claim to possess. ("Assume a can opener ..." might quickly go away.)

Instead of a constituting a body of mainly complete unknowns hiding themselves in a tiny, insulated environment characterized by no other traits more than by group think, petty concerns and defensiveness, producing nothing of value except perhaps teaching (which they deride for that very reason), these activities might help law profs rejoin the profession of law.

Anon

As per usual the Law School Truthers ignore or are ignorant of the fact that law faculty have two purposes - train professionals and conduct research to advance our knowledge and understanding of the law. Neither of these requires law faculty to be practicing lawyers and arguably they should not be. But the Truthers think of law school as a conspiracy aimed at bilking young professionals in training so ignore the reality that law schools are not simply training facilities but are instead integral parts of universities, for the most part. Ironically, of late, the LS Truthers have concentrated their fire on for profits - the very schools that would seem to most closely adhere to their ideal for a law school as training facility.

anon

Anon

Per usual, the Law School Reactionaries respond with knee jerk defensiveness whenever any proposal threatens to force them out of their comfortable burrows, and to dirty their hands with the needs and concerns of students and the legal profession.

The ignorance and arrogance displayed by this statement "[We] train professionals and conduct research to advance our knowledge and understanding of the law. Neither of these requires [us] to be practicing lawyers and arguably [we] should not be" is staggering.

This motto should be emblazoned on the door of every such professor's office.

Jojo

Anon,

Assume that the point of law school is to train professionals and to conduct research. How is that incompatible with being a licensed professional? There is no representation aspect to being a law prof, and I get that, but how is being a licensed professional at odds with being a law prof, especially given one of two reasons for existence is to "train professionals"? Further a dismissal of "arguably they should not be" is "because I said so" ipse dixit reasoning. (Query whether, philosophically speaking of course, it's the same as saying "arguably they should be.").

I have no problem with legal research. I'm a frequent critic of law school, and I value truth in disclosure, so I guess I'm a Truther. The problem with legal research as constructed is that it is not legal research. Much in law is ignored as it is not interesting or of limited social justice interest. That's not to say that law school is not an important part of a university. It is; but so is the dental school, and so is the business school. There is no clinical research that occurs at law schools, and it may be controversial for me to say, but I wonder whether there exist any universal truths or certainties or lessons in law waiting to be revealed. There are legal decisions. There are conflicts. There are policy choices. Law, however, is mostly a construct made by legislatures, agencies, and courts. Research, and the profession, would be well served if the focus were directed into the boring areas of law, which are underexamined and frequently are a jumbled mess. That's a topic for a different post, however, and you should not let that dissuade your knee-jerk visceral reaction that all is right with modern legal education and that no one is harmed by the current status quo.

Different Anon

I have come to two conclusions about the commenters on this site:

1) there is no topic that cannot be turned into a rant about "lazy law professors," "law school is a scam," "schools only interested in students as loan conduits." It is tiresome to hear the same repetitive points by the same 5 people every day. I just wonder why they dont start their own blog, and clog it up with the same repetitive points. The readership would be in the dozens.

2) 90% of them have no idea what law professors actually do, day in and day out, on the job. It seems absurd and arrogant to say that since you attended law school, you can say without hesitation how they should be run and how professors should spend their time. (and before you attack, as you inevitably do, let me be clear that the preceding sentence in no way suggests that law schools should not try to do better, change things that need to be changed, and be focused on students. I know how much you like to straw man to these points, so I'll save you the effort)

terry malloy

"conduct research to advance our knowledge and understanding of the law"

chortle.

I know what you do in the context of student reviewed 'research.' It just isn't very valuable to your students, the legal system or our civil society. Especially when you're duping rubes to navel gauze.

Jojo

Different Anon,

The former point is incorrect. It may be true of deans, but not of all law profs. For the most part, law faculty work hard and care about students learning the material. That doesn't mean all is well in the system, and it certainly does not mean that there are not scam aspects.

Your second point is well taken, as it is the converse of the frequent complaint about the academy. Law school is so different from workaday practice, that it is out of touch. If faculty are out of touch with practice, the same is true of practitioners vis-a-vis the academy. Many, including Prof. Merritt have called upon us to "tear down that wall." Indeed, this post is calling for that.

Criticism is not pleasant, but it's not all toxic. I have little doubt that you care about your students and work hard in their interests. It's a deeply flawed system, however, and there are structural aspects of the system that seem structured to serve the interests of those other than students and clients. Therein lies the problem in need of reform. From your penultimate sentence, I take it that you're aboard the reform wagon. Welcome, and please do what you can to improve things for students, practitioners, and future clients.

Former Editor

Is there another profession where those that train the new professionals are not expected (or required) to be licenced members of the profession? Perhaps I'm wrong, but I thought that was the norm in medicine etc.

anon

Different Anon

Apparently, you are a close and frequent reader of the threads you decry.

Then, you take the additional time to participate, usually to repetitively complain about the repetitious nature of the threads you repetitiously and seemingly compulsively read, again and again, and participate in, again and again (using different pseudonyms, it appears).

I believe I understand the reason for this commitment on your part. You think others have unfairly accused you of having too much time on your hands.

James Grimmelmann

A substantial number of medical school faculty aren't licensed physicians and don't have medical degrees. They don't do the medical equivalent of clinical teaching, but they do perform bench research, give biochemistry lectures, teach anatomy labs, lead discussions, etc.

Eric Muller

Deborah, I agree completely that law professors should be ethical role models. But the Rules of Professional Conduct aren't designed to guide people to be ethical role models; they're designed (in the main) to set a standard beneath which a lawyer cannot fall. If we are to be role models, shouldn't our sources be more aspirational than the RPCs?

anon

James

True: medical science benefits from progress in other sciences.

What is irrelevant here is an analogy to research conducted by unqualified JDs (in an ancillary field, such as economics) who pose as being qualified therein by reason of having garnered a law appointment, concerning matters that have little, or no bearing on any subject even remotely relevant to the practice or study of law and legal systems, justified as being of "benefit to the world."

Deborah Merritt

Eric, I agree that law professors (and all lawyers) should aspire to more than what the Rules of Professional Conduct require. But shouldn't profs at least know the content of those rules? In addition to articulating a minimum, the rules put some flesh on abstract principles. Most professors, I suspect, know in theory that lawyers have to avoid conflicts of interest when representing clients. But if the professor (especially one who teaches criminal law) doesn't know that this precludes representing codefendants, the professor doesn't really understand the meaning of "conflict."

On the other hand, I wouldn't require all profs to acquire expertise in professional responsibility. Like John, I believe that this is an important field that requires expert research and teaching. The field, though, is different from other legal subjects because it contains the essence of our professionalism. For that reason, I would require all professors to know the basics and to maintain minimal ongoing engagement with the rules. If we do more, so much the better!

James Grimmelmann

I should have added that medical students I've known said that their non-physician professors included some of the very best and some of the very worst teachers they had.

Just Another Practicing Attorney

"If we are to be role models, shouldn't our sources be more aspirational than the RPCs?"

The sources should be more aspirational than the RPCs, but that is beside the point. Babies must learn to crawl before they walk. And if Professor Merritt's post is to be believed, a surprising number of law professors are still learning to crawl.

I was astonished to read that those two law professors were unfamiliar with the prohibition on covenants against practice. No lawyer with any material experience in practice is unfamiliar with that rule, as the issues it creates arise all the time, in many different practice contexts. (Example: Can a lawyer ask a party to sign an agreement purporting to release claims on behalf of the party's "agents and attorneys," or does that request amount to soliciting a violation of the rule?) As you say, these are standards beneath which a lawyer cannot fall, yet these two professors are not even aware of them. It is shocking that people stumbling about in the subterranean darkness of such ignorance are tasked with showing the light to others.

So let's first get law professors up to code. Then we can talk about more aspirational sources of ethics.

[M][@][c][K]

A couple of points.

The analogy to biochemistry teaching medical students might be a fair one, is James Grimmelsman were to recognise a few difficulties. Qualified physicians teach medical students too, but are generally paid considerably more than non-medical-doctors doing that teaching. Law professors who hold JDs similarly demand to be paid much more than say political science professors (and expect, curiously, to be paid more than clinicians who are usually practicing lawyers), with the result that law profs are among the highest paid academics in any university setting. Law professors justify this pay differential using the "I could be a BigLaw partner" argument. That raises the question - if you do not maintain bar membership should you be paid what a political scientist, sociologist or philosopher on faculty is paid? It would mean a big cut.

Next the plaintive whine form Different Anon "but mommy, these critics don't know what law professors do all day." I'll refrain from making suggestions about what Different Anon is doing (but I can make guesses.) There is a key difference - Different Anon is pretending to teach a profession, law (and presumably prancing around in front of 1Ls enunciating their need to "think like a lawyer.") If you are teaching the profession of law, it behoves you to know what a professional in that profession does, what the ethics rules applying to them are, the business imperatives that drive their roles. The reverse does not apply (we are not teaching law professors) - and if Different Anon thinks it does, he ought to perhaps give up the law professor pay check and take the pay check of an ordinary humanities professor.

John Steele

The continuing discussion brings to mind the notion of teaching legal ethics via the “pervasive method,” a noble experiment that did not gain traction when it was floated about 25 years ago. The idea was that ethics and the law of lawyering could be incorporated into all the law school classes. The legal academy still isn’t capable of pulling that off even it wanted to, imo. It doesn’t have the right people or the right orientation. At the same time, it’s worth noting that you don’t need a law license or even a JD to be a professor with a deep understanding of legal practice, so long as you work at it. I will leave their names out of this thread, but I’ve had discussions with non-JD professors who know the ethics rules and have a deep and nuanced familiarity with legal practice. For me, it’s not about the external trappings (JD, active license, CLE credits, etc.) but rather is about a sustained commitment to legal practice and the law governing lawyers. That’s something every law school can and should do.

Derek Tokaz

John,

In response to your earlier comment about professional responsibility needing to be treated as a serious and important course, my PR class was the only one were the professor explicitly said we don't need to come to class except for on the one day we were on call (in violation of the ABA's accreditation standards). We were also told on the first day that we would not be covering the rules of professional responsibility and if we wanted to learn them we should just take a BarBri class. Instead, we focused on the history of legal ethics, largely on the role of advertising.

The journalism ethics class I later took was top notch, combining a good background on different theoretical approaches with a lot of real life dilemmas.

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