LAW SCHOOL CRISIS

ARE LAW SCHOOLS IN CRISIS?

The New York Times’ call for reform comes during a time of unsteady economic recovery, rising tuition costs, ever-higher debt loads for students, and fewer legal jobs, especially high paying legal jobs.  Many firms are restructuring themselves in ways likely to outlast the current recession.  But does this mean law schools are in crisis?  I believe the call for reform is a symptom of a crisis situated elsewhere – and that, viewing the patient from a broader perspective, the diagnosis of crisis in legal education may be misplaced.

In these brief remarks, I want to make the case that law schools are (and have been for some time now) in a transition driven by the transnationalization of law.  In recent years, law school curricula have become more theoretical and more skills oriented, and this is as it should be.  Thus, I see the present situation within law schools not as requiring a choice between theory and practice, but ever more creative ways of integrating theory and practice.  We need theory to know what our practical priorities should be.

As preface, let us acknowledge that the world is in crisis – and it would be surprising if some aspects of that more general state of affairs did not affect law schools. I am referring to the crisis of neoliberalism – the limits of which are now evident in Europe, as well as in debates over federal expenditures here in the U.S.  Is there anything in this situation that poses new challenges for law schools?

To this, the answer is surely yes.  At a minimum, the lingering effects of the economic downturn affect law schools in three main areas.  The first, and perhaps most obvious, is the cost of legal education itself.  In modern times, law schools have always had to deal with the intricacies of managing the law school/university interface with regard to revenue flows and cost sharing.  But now there are more intense pressures.  I refer to the challenge of maintaining broad access to legal education through financial aid, as demand for aid goes up even as other needs press hard against tuition dollars, annual funds, and returns on endowment.

A second area of the downturn’s impact is the volume of business for law firms, and the demand for new legal talent. Current law school curriculum reformers, both inside and outside the academy, echo employers and their clients in calling for more skills and less theory. Law firm clients are savvy consumers, and some don’t want to pay for trainees. Law firms want graduates prepared for the practical demands of practice — prepared, as they say, to hit the ground running. Twenty years ago Judge Harry Edwards sounded a similar complaint when he focused on interdisciplinary approaches to law as a diversion from fundamentals. Chief Justice Roberts has echoed this view more recently.  I could not agree less with that complaint.  If law firms and law schools have different priorities, we should not assume this is a deficit on the law schools’ side. Law firms serve today’s clients.  Law schools train lawyers, but we are also educating them to meet the knowledge demands of today’s dynamic legal scene and well into the future.  And that brings me to a third area of impact from the current crisis:

The third area of change involves recent changes in law and society – particularly the emergence into prominence of that complex set of developments known as transnationalism.  Law is no longer the monopoly (if it ever was) of states and their internal jurisdictions.  Transnationalism is radically diverse:  combining domestic and international institutions, as well as non-state entities – some of them (multinational corporations) as wealthy as most nations, others (vulnerable populations at the social margins) practically invisible. Markets and states are thoroughly mutually embedded; the very idea of “national interest” nowadays is inseparable from the state’s interest in maximizing the national position in transnational flows of capital, goods, people and ideas. Accordingly, transnational law is layered, dynamic, multi-centered, involving many purposes, and calling on many different kinds of analysis.

In this regard, the practical demands of the current legal scene are not what they were even ten years ago.  It takes tremendous analytical agility to manage the multiple polycentricities and complex fusions of contemporary law that law students will face as soon as they begin their careers.  Law students are coming to their professional degrees from undergraduate educations increasingly imbued with transnationalism – not only in the social sciences such as economics and political science, but also in the humanities (literature, history, cultural studies).  In recent years, transnationalism has had significant impact on disciplinary borders and bridges, issues of identity and rights consciousness, and the very meaning of professionalism.  The internationalization of law schools through exchanges and advanced degree programs is also here to stay.  Suffice it to say that the transnationalization of law and legal education is an inescapable and irreversible development of the current scene.

While some of the impact of transnationalism may be in the realm of intangibles (for example, felt as a shift of consciousness rather than material conditions these developments are very real, and so are their demands on faculties and students. This is why I feel it is a mistake to pin these developments on law schools as their internal crisis. What we are experiencing is a pervasive conflict over mission, but this is not a conflict we can resolve through internal reforms alone.  It involves fundamental tensions over what the law is for, and what it means to be a legal professional.  It points to the difference between legal education and legal training; between priorities derived from the on-going development of law as a social institution, and priorities keyed to current markets for law.  It entails different visions of the public – as consumers or citizens; indeed, between different visions of law’s role in relation to justice.  Law schools should be leading these debates.

So let us broaden the horizon and consider the law school scene in a larger context.  While we are hearing a great deal about reforming legal education in the direction of skills, the reality is that the demand for skills is being driven by the larger context in which transnational capital and marketization have become the major idioms of social life. Transnationalism increases law’s exposure to non-state interests in ways that are pervasive and new. But transnationalism is not just a question of interests emerging between national states, or between states and non-states.  It demands another way of thinking about law at every jurisdictional level and in relation to every institution.  It demands another way of thinking about the relation between the local and the global – down to the level of individual personhood.  For example, when a contractor bidding to provide health care or food to a privatized state prison cuts back on service to win the contract, the value of each individual inmate is leveraged against the value of those dollars in the global economy.  Some of these connections are empirical, with clear causes and effects; others are interpretive, accessible by a  perceptive association of circumstances.  Theory and skills are inseparable precisely because the analytical demands of transnationalism are themselves diverse and wide-ranging:  some legal needs are obvious; others are below the radar.  There is no part of the law school curriculum that is not in some way affected by the transnationalization of law and society – especially in the conventional borders between law school subjects (for example, administrative law and contracts) and between law and adjacent fields of scholarship, whatever these might be. Law schools have ventured into interdisciplinarity to broaden their theoretical range, and they have also committed themselves to pragmatics with the rise of clinical legal education and legal writing programs. These go together, and both are now integral to our curricula. The connection between theory and practice could itself be an area of innovation — an innovative intra-disciplinarity – reflecting the fact that we live now in a transnational world, not just a local, state or national society. Creative capstone courses could support students’ fluency as they in the complex inter-legalities they are learning in their courses.  Skills could be integrated into theory courses in novel ways that the internet and new media make possible.

Our students will practice law in a world in which the categories of our craft will not stand still.  Just last week, the front pages gave us the latest round in the “right to work” movement and the recent human rights claim against Greece by hedge fund lenders. The real crisis today, I believe, is not in the way we prepare law students for law practice.  Rather, it is in the ways the transnationalization of law and society have destabilized traditions of citizenship, rights, and public life that we once took for granted.  Educated and well-trained lawyers should have a major voice in what comes next.

Alfred C. Aman, Jr.

 Seminar, February 2, 2012: Harvard Law School SJD Association

Introducing 2 new legal realists and 2 old legal realists…

In our September 2011 post, we introduce two members of a younger generation of new legal realists, and re-play some nuggets of wisdom from two of the older generation…. Jerome Frank and Karl Llewellyn.

THE NEW GENERATION OF REALISTS …. NOW JOINING us in NLR Conversation are KT Albiston and Riaz Tejani.

KT is a Professor of Law at UC Berkeley’s Boalt Hall, where she teaches in the Jurisprudence and Social Policy Program.  She has degrees in psychology and sociology from Stanford as well as both a J.D. and a Ph.D. from Berkeley.  She practiced law at the Legal Aid Society of San Francisco, where she worked on issues in employment law related to gender discrimination and work/family policy.   Her research focuses on the relationship between law and social change, with particular emphasis on how institutions shape the meaning of law in particular social settings, and how law relates to broader social processes that sustain systems of power and inequality.  For example, she studies rights mobilization, the role of public interest law organizations in bringing about social change, and how technical legal rules have unintended consequences for the development of law.  KT is a compulsive fiction reader, probably because her sister is a librarian, and procrastinates with literature ranging from Richard Powers to Edith Wharton.

Riaz Tejani is a lawyer and anthropologist interested in the capacity of law under conditions of globalization to conceal and hide what is going on.  Based on lengthy ethnographic fieldwork in France, his first book manuscript looks at the role of multiculturalism in the failed European Constitution–a failure with comparative lessons for students of American federalism and immigration law.  His current research explores the long term rapprochement between anthropology and academic law and contemplates the use of ethnographic theory and methods to understand doctrines of Tort law in their living, practical context. Riaz holds a Ph.D in Anthropology from Princeton University  and a J.D. from USC, and is Assistant Professor at the Phoenix School of Law.  When not teaching he has been seen recording and performing with the indie rock group “The French Semester.”

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AN OLDER GENERATION OF REALISTS: Richman on Jerome Frank

Steven Richman, Edgar Lee Masters and the Poetics of Legal Realism, 31 Cal. W. L. Rev. 103, 108 (1994) wrote:

Jerome Frank, in his culminating work Courts on Trial specifically addressed the question “Are Judges Human?” Legal rights are not rule-intensive, but rather, they are a function of what will happen in a particular court as a result of a particular lawsuit, which witnesses will lie, and so forth. Facts are fluid. They are what the jury determines them to be and are, at most, guesses. Not facts, but subjective facts lead to decisions, and Frank argues that perhaps only seventy-five to eighty percent of contract cases can be predicted to be resolved in accordance with actual principles of law. In other words, Frank rejects the proposition that legal rules govern, and sets forth his “realistic” view, that only the particular lawsuit establishes rights, and not pre-conceived rules. Judges and juries are themselves fallible witnesses of the fallible witnesses testifying before them. He refers to legal philosophy or jurisprudence as “legal magic.” Legal rules do not control the trial courts since they cannot, no matter how intelligent the judge, control the subjectivity of the fact-finding process. . . .

Frank divides the so-called realists into two camps: rule-skeptics (in which he places Llewellyn) and fact-skeptics (in which he places himself). The problem with the rule-skeptics is their limited experience or emphasis upon trial courts. As a “fact skeptic,” Frank goes so far as to argue that legal education should include studying the effect of judicial corruption. The basic thrust, then, of the realists in the 1920s and 1930s was that “law is indeterminate.” They were united in terms of their focus away [*109] from rules and on individual judicial decisions. Their contribution, still debated today, was that law should be studied in terms of what is going on in the real world and not simply in a theoretical exposition of how law “ought” to function.

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Excerpt from Karl N.  Llewellyn, THE BRAMBLE BUSH (p. 89-9)

(Originally published in 1930 and then reissued in 1950):  These are lectures attempting to introduce the students at Columbia Law School to the study of law.  “[T]he first craft of law a man must learn is the craft of the law-student; and to that one the lectures as written attempt to give both body and meaning.”    [Note that there were almost no women lawyers in 1930, and Llewellyn writes about “men” meaning all affected by the law]

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. . . You find me dealing with “the law” and what it is and does.  I say its center is the action of officials, all law officials — and no sooner say it than I slip off my own platform to land for lecture after lecture in discussion purely of these courts of high review, and what they do.

Surely it is clear that I am damned out of my own mouth.  If, as I claim, what appellate judges do is vastly more important than what appellate judges say, that can be only because importance to other people, to the laymen, to the poor devils to whom they do it, appears to me the primary measure of importance.  And on that basis surely you should ask me:  how many people do appellate courts affect?  For a thousand cases appealed to the court of last resort there are ten thousand which stop at the intermediate court of review.  For a thousand which reach the intermediate court there are ten or twenty thousand which go wholly unappealed.  More; for a thousand cases on trial in the higher courts of trial — the County Court, or Circuit, or Supreme — there are again ten or twenty thousand settled finally in some lesser court of trial:  a small claims court, a municipal court, the court of a magistrate or justice of the peace.  Here in this moving mountain of the cases unappealed, is the impact of the officials on society — even within the realm of litigation.  Beyond, there is the massive impact of the administrative machine.   By my own showing, on my own premises, these are what count.  I pass them by.  Out of my own mouth, damned.

Yet what can I do?  I am a prey, as is every man who tries to work with law, to the apperceptive mass.  I see best what I have learned to see.  I am a prey, too — as are the others — to the old truth that the available limits vision, the available bulks as if it were the whole.  What records have I of the work of magistrates?  How shall I get them?  Are there any?  And if there are, must I search them out myself?  But the appellate courts make access to their work convenient.  They issue reports, printed, bound, to be had all gathered for me in the libraries.  The convenient  source of information lures.  Men work with it, first, because it is there; and because they have worked with it, men build it into ideology.  The ideology grows and spreads and gains acceptance, acquires a force and an existence of its own, becomes a thing to conjure with:  the rules and concepts of the courts of last resort.   And there is more to the matter than this.  It does remain true that if a case is appealed, it is the appellate court whose word is the last word, the word that counts.  We cannot then neglect it.  In large matters (which will pay appeal) we can and must work with the high court in the forefront of our minds.  Even in small matters, we have seen that the rules of appellate courts are good to press upon the lower, that the lower court attempts to give heed to them, that with them we may bring the lower court to see our way.  There is excuse, then, there is reason, for fixing attention on these upper courts.  But is that either reason or excuse for stopping with them.

What warrant have we for assuming that even the judicial system alone (I say nothing of the administrative) works with any unity?  We look at our highest courts and find their words a long way from their doing.  In their own work we find that we can trust their rules part way, but part way only.  In their own work the drive-belt slips between rules and results.  Must we not then assume a further slipping as the distance grows, and as we move down the line?  At each stage less exalted judges, at each stage more of them:  are we not to guess that the average of ability is lower too?  Are we not to guess that other factors join in giving the wheels their drive, as the factor of high court rules slips more and more into ineffectiveness; that the interplay of belt and gearing turns the machine in strange, unsuspected ways?  Ignorance, prejudice, accidents of experience, favor, indolence, even corruption:  how much, how often, when, and where?  How far, too, does the set-up of the procedural system stand between the rules and the results?  Yet by their fruits shall ye know them.   Law is, to the community, what law does.   What picture of the doing can you find in all this study of appellate courts alone?

Again, as so often, I have no remedy.  One thing of great importance we can offer:  the wherewithal to discover the official version of the rules, and some experience in observing how the highest of officials work with them.   Some practice, too, and some information, as to what they mean to laymen whose affairs are big enough to call for taking thought as to these officials.  We can, too, call attention, now and again, to the limitations of the picture thus set up.  But we cannot keep the picture from distortion, as you go more and more deeply into a single part of it, neglecting all the others.  We cannot take you into the other parts.  We have neither the wit nor the knowledge — neither we, nor any man.  A first beginning has been made, is being made, at getting the necessary knowledge.  No more:  a first beginning.  We have achieved in this the first stage on the road to wisdom:  some few of us have begun to guess how limited the knowledge of any of us is.  For you, meanwhile, the task of setting yourselves so far as in you lies to question always, as you go, what lies beyond; to whom does this rule mean anything at all?  And how much, even to that man, does it mean?