The Academy Strikes Back

By Mike Dorf

Yesterday's NY Times contained a letter from Yale Law Professor Bruce Ackerman criticizing the Times's misbegotten crusade to convert law schools into trade schools (previously discussed by me here and here, and by Professor Buchanan here and here).  Ackerman criticizes the Times for opining that law is merely "a means rather than an end, a tool for solving problems."  On "the contrary," Ackerman writes, "law also helps define our fundamental problems." Because "[m]any law students will become our future leaders," Ackerman argues that they must be educated in the case method as well as the sort of "social science and philosophy" that have purchase on such first-order tasks, rather than merely being taught how and where to file a piece of paper, as the Times reportage suggests.

I largely agree with Ackerman but I can anticipate a possible response: Perhaps graduates of Yale and some other elite law schools will become our future leaders, but most lawyers want to learn a trade.  After all, Yale is not among the schools now being sued for fraud.  Perhaps students who are certain or nearly certain to obtain well-paying jobs as lawyers after graduation don't mind paying the premium for learning how to define problems as future leaders, but those with less certain job prospects want a leaner education that prepares them to hit the ground running at lower cost.

Is that an effective rejoinder?  Not really.  It strikes me as more of a non sequitur, as I shall explain.

For one thing, lawyers from non-elite law schools in fact end up among our nation's leaders.  Vice President Joe Biden attended Syracuse Law School (ranked in a tie for the 100th slot by US News).  The late Chief Justice Warren Burger went to night school at what is now the William Mitchell College of Law (ranked 135).  Congresswoman and Presidential candidate Michele Bachmann attended the O.W. Coburn School of Law, then affiliated with Oral Roberts University and now defunct.  Some of its faculty were absorbed by what is now Regent Law School, which does not have a publicly available US News ranking.

I'm not invoking the dreaded US News rankings as an accurate assessment of educational quality.  Quite the contrary.  Take Syracuse, which is just up the road from Ithaca, and has some first-rate programs and faculty.  The larger university also has some very good departments, including political science.  Given how many really good faculty there are at relatively less prestigious law schools, it is now possible for a student to get a terrific education of the sort that Ackerman envisions virtually anywhere.  It's also undeniable that in the current economic climate, graduates of Syracuse, William Mitchell, Regent, and a host of other law schools, including just about all higher ranked schools, are finding it harder to find good jobs (or in too many cases, any law jobs) than graduates did five years ago.

But if the problem is that U.S. law schools are graduating more lawyers than the economy can absorb, then the solution would seem to be to graduate fewer, regardless of how and what we teach.  I suppose one could say that if law schools de-intellectualized legal education in the way that the editors of the NY Times favor, then law school would be cheaper, and so prospective students would be taking less of a gamble in attending law school in the first place, because if they end up not getting jobs they'd only be out $75,000 instead of $150,000 (or whatever the numbers are).  Yet this is hardly a solution to the problem of too many lawyers chasing too few jobs.  That is why I said that the hypothetical response to Ackerman is something of a non sequitur.

To my mind, there are two sets of independent questions.  One is what and how law schools should teach.  I think the answer is rather straightforward.  We should offer some mix of: traditional "thinking like a lawyer"; skills and  experiential learning; and insights gleaned from related disciplines like economics, political science, and history.  The challenge, as Ackerman notes, is integrating education across these dimensions, but pending the solution to that problem, offering separate courses in each of these areas is a pretty good stopgap, and it is more or less what law schools have been doing for the last 20 years or so.

The second set of questions concerns the job market.  Will the number of good law jobs eventually recover to pre-Great-Recession levels?  I have seen plausible analyses that say yes as well as analyses that say no.  It is almost certainly too soon to tell.  As I said above, the answer to this question should affect the number of lawyers we produce each year.  Reduced incomes for lawyers would probably also translate into reduced resources for law schools, which could affect both what law schools teach and, in the long run, how they staff their classes.  But, to repeat a point I made in my earlier intervention on this subject, that would be an unfortunate cost to legal education, not an improvement.

In other words, it may be that the day will come when we can no longer afford to offer the sort of legal education that we really ought to be giving to our future leaders and indeed, to all lawyers.  Already the liberal arts are suffering very badly in many American universities, which is a great shame.

The mystery in all of this is why the editors of the NY Times have this issue so backwards.  The best I can do is venture a psychological hypothesis.  With journalism having already been decimated by the double whammy of the digital revolution and the Great Recession, the Times editors look upon the legal academy with schadenfreude, wishing a similar fate for us.