The Clear and Present Danger of American Law Schools

Why are law graduates so badly prepared for legal careers? What makes them know-nothings with lots of debt?

I’d like to suspend our typical chit-chat today and give you some perspective on how lawyers like myself come to learn what we know (it’s entirely through practice at law firms). I was thinking about this topic over the past few days, and what follows is a loosely structured meditation.

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A lot of law students just want the paper.

The diploma, that is.

And money too.

Law school—for many of the highest achievers—is a status-cum-prestige-cum-resume thing.

But do they desire actual knowledge of corporate law? Yes, maybe?

I am not sure anybody remotely involved in the education of future lawyers wants to systematically impart that knowledge bad enough. If they did, we would have definitely seen that by now.

The change we do seen—and it never fails, year after year—is the bill. At law schools across the country, a student can easily accumulate $250K-300K in debt.

The vast majority of first-year corporate associates at high-powered law firms—both large and boutique—have dismal to no understanding of the practice groups they join in the autumn following their graduation from law school. I was one of them!

To be clear, the fancy corporate attorneys at large law firms likely make up about 5% of lawyers nationwide. And many of them maneuvered their way into the ranks of these firms by tactically scoring high on first year courses—which largely decide whether a student is interviewed for a summer associate position following the end of their second year. If one avoids getting into trouble and does a decent job of placating the hiring committee during the summer, a full-time offer post-graduation is pretty much guaranteed.

Divorce grades from a student’s knowledge and skill, and that’s what you end up with.

At a typical American Bar Association-accredited law school—there are almost 200 of them—there is not a single required course on securities, corporations, partnerships, structured products, debt financing, M&A, investment funds, capital markets, tax (income, property, corporate, etc.), executive compensation, intellectual property, trusts and estates, secured transactions, or bankruptcy.

Nor are any of these core subjects on the New York bar exam.

Nor are other vital non-corporate areas of the law required learning: immigration, national security, etc.

Makes an outsider wonder, what the hell are ABA-accredited law schools teaching the students paying them six-figure tuitions?

The Dormant Commerce Clause. The Rule Against Perpetuities. The Implied Covenant of Quiet Enjoyment.

??????

In practice, I use no more than 1-2% of the knowledge acquired in law school. Much of it is forgotten. All of it feels gratuitous.

I am also not convinced that law school “teaches you to think like a lawyer.”

If everyone used the law school way of doing things in real life, I feel like there would be a lot more malpractice we’d be hearing about.

The Curriculum

There are seven required courses at the typical law school, and these seven courses also constitute the majority of knowledge tested on state bar exams:

• Property

• Contracts

• Constitutional law

• Criminal law

• Civil procedure (but not criminal procedure, which is quite relevant to our daily lives as Americans)

• Evidence

• Torts

Some law schools have additional required courses, but remember, we are concerned about the typical law school.

For the students that come straight from undergrad (“K through JDs” as they are sometimes called), law school is just a continuum of college: crying over late night calls to childhood friends, Insomnia cookie binges, and skittish beef that puzzles that growing contingent of latter-day classmates, many of whom are parents and/or pursuing second careers.

How often do you come across an arrangement that reflects such an unblemished refutation of logic, no less by a profession that claims to be the most rational of them all?

Whether it’s the content itself or the capabilities of law schools to provide useful training, legal education for the past 100 or so years has been based on the “casebook method.” Inaugurated by 19th-century jurist Christopher Columbus Langdell, the method dictates that the best way to learn American law is by reading judicial opinions.

That is, instead of relying on abstract summaries of legal rules, the casebook method dictates that the best way to learn American law is by reading judicial opinions.

But what does one do if there are specialty groups, like investment funds, there is no going to court. No litigation. Just good old LPA drafting.

And most lawyers don’t go to court much. Many do not go at all, like ever, as part of their daily practice.

The worst part is that these students aren’t guinea pigs in some new era of educational experimentation. If they were, perhaps the sordid amalgam of pedagogical affairs at a typical campus would have been forgivable.

And then those cases become memes on lawyer Reddit. Because everyone can relate to the ache of reading decades-old stories in criminally expensive textbooks while drinking bland instant coffee.

But the campus buildings are pretty! And a famous federal court of appeals judge is coming to referee the annual moot court competition.

The Teachers

Recall that private funds constitute a $27 trillion (and growing) industry. Regulated funds—mutual funds, ETFs, money market funds—are even bigger.

Most private funds courses—there aren’t that many of them—taught in American law schools are taught by adjuncts. These are part-time faculty usually composed of active practitioners.

So they know the stuff—and some of them are excellent teachers.

Broadly, you’ve got three types of teachers:

1. Tenured faculty, who are (in my opinion) more so expert researchers than educators.

2. Lecturers, who are part or full-time, contractual teachers that teach legal writing courses and some specialty fields of law. They are sometimes/often poorly-paid.

3. Adjuncts, who are active practitioners but don’t always have a structured pedagogy. They will get a per-course stipend (not much, maybe $3-8K/semesterly course)

Rarely is there anyone who possesses (1) the research expertise, (2) practical experience and (3) ability to teach well.

By the way, there is nary a mention among legal educators that investment funds should be a mandatory course (I am, of course, biased that funds should be required).

And the law firms hiring the know-nothing GPA finessers aren’t requiring it either.

What gives?

It’s a peculiar thing that tenured academics that discourse on the 4th Amendment—constitutional law professors are like the high priesthood in law schools—teach students who aspire to practice (students who want to go into academia are exempt from this analysis).

I am not sure this is entirely appropriate for the twenty-first century.

Many tenured faculty secure the coveted bag not for the opportunity to teach—that’s a requirement begrudgingly accepted as part of the contract, often outsourced to the above-mentioned contracted lecturers—but for the ability to write, conduct research, and enjoy the perpetual, guaranteed employment that comes with tenure.

Though it’s important to note that there are tenured faculty who are inspirational and care profoundly about their students. Their instruction is top-notch, and they aren’t to blame for the fact that the curriculum they teach is…not the most applicable to attorneys in real life.

We may also consider the philosophy around tenure: major American universities acquired their import in the early twentieth centuries not as bastions of effective instruction, but as centers of rigorous research.

Notwithstanding the fact that no one tenured faculty can “fight” the existing legal education system, the marketing pull for many ABA-accredited law schools is the fact that some famous professor (usually a litigator or a constitutional law expert) teaches the first-year constitutional or criminal law course.

Because the current arrangement is so focused on helping students acquire a high level symbolic importance—of prestige or the perceived ability to analyze court cases (“We read the OJ case today” or “My daughter’s in law school”)—there is little that can be done to reform it to the degree required. The faculty aren’t to blame as much as the layer of state bar associations and accreditation mechanisms that sit above them. Those guys are stubborn.

Which is to say it is not possible, nor in my humble opinion advisable, for ABA-accredited law schools to make the fundamental pedagogical shift necessary to produce students who aren’t chronically insecure and uncertain about both their future career prospects and their ability to deliver quality legal services upon graduation.

And remember, we aren’t just talking about fancy corporate attorneys here. We are also talking about the many graduates who lack direction, purpose, and the required confidence to think meaningfully about legal practice.

Moreover, what incentive have we provided to tenured faculty—or the lecturer rank—to engage in effective pedagogy?

Currently, there is not much.

This is the crucible of legal education in the United States, and it is as agonizing as it is obsolete. It’s also dangerous.

I guess we can try to change it, but it seems hard, and I—like the typical specialist—would like to leave that to someone else. I’ll play my part by writing on investment funds.