By James Kwak
A number of friends have asked me what I thought about David Segal’s article in the Times a couple weeks ago on law schools, so I thought I would share my thoughts here. The short answer is that I thought it was pretty silly.
I admit that law schools aren’t perfect. The simple fact that many (no one really knows how many) law school graduates can’t find jobs as lawyers is a problem. Now, it’s not obvious that that’s the fault of law schools as a group: when you pile a severe recession on top of an ongoing shift among law firms away from first-year associates and toward contract lawyers, the number of entry-level jobs is going to go down, and no matter how good a job the law schools do, that isn’t going to increase the number of jobs. Furthermore, you could make exactly the same criticism about all of higher education: it leaves people with large debts, and many don’t get jobs; imagine the article you could write about humanities Ph.D. programs! Still, Segal’s earlier article pointed out some of the ways in which rankings pressure has pushed some law schools to be less than candid about their graduates’ job prospects, which can’t be good. (And people like making fun of anything that has to do with lawyers. It comes with the territory.)
Segal’s latest article, however, goes for laughs at the expense of substance. It opens, for example, with a scene in which three first-year associates are stumped by the question of how to “accomplish a merger.” The answer, it turns out, is that you file a form with the secretary of state. “What they did not get, for all that time and money,” Segal moralizes, “was much practical training. Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions.”
There is a kernel of substance here, but Segal manages to bury it behind this over-the-top example.* Is knowing what form you need to file where really the difference between a good legal education and a bad one?** Procedural details are the kind of thing that is best learned on the job. Knowing how to clear a jam in the copy machine is probably one of the most important skills a first-year associate needs to know (judging from my experience at McKinsey), but that doesn’t mean there should be a skills class on using photocopiers in law school.
Although I am nominally a law professor, I haven’t taught a day of law school in my life (I’m on leave now), so my impressions on mainly based on being a law student and a summer intern. My first summer, when I was doing legal services, I learned a tremendous amount that I hadn’t learned in law school. I learned how to use those funny folders that have two metal prongs sticking up, and how to use the two-hole punch so you could put paper in those folders. I learned that if you want an exemption from a filing fee because you can’t afford it, your statement of financial condition has to be on pink paper. Perhaps most importantly, I learned which person you should avoid in the clerk’s office because he was certain to give you a hard time about your forms. These are all necessary skills of any good lawyer in that office—but that doesn’t mean they should be taught in law school.
This shouldn’t be surprising. Our economy runs on the premise that some things are best learned in school and some things are best learned on the job. You learn basic math in school; you learn how to use a particular piece of actuarial software on the job. If the only thing you needed to know to be a lawyer were procedural skills (by which I don’t mean “procedural” in the legal sense), then we wouldn’t need law school at all; we would just have apprenticeships, which is the way it was in the eighteenth century.
But it isn’t. Back to me. Despite not knowing how to use those two-pronged folders, I did some valuable work that first summer. In particular, I wrote large chunks of a brief and reply brief that, largely unedited, were submitted to the state supreme court. We won. (I’m not saying that my sections were the difference—they weren’t—only that experienced lawyers who were good enough to win a state supreme court case thought my sections were good enough to include alongside theirs.) I could not have done that without my first year in law school.
The most fundamental thing you need to do legal work, I believe, is an understanding of what the law is (which is more than knowing what the laws are), how it works, how courts make decisions, and how to make legal arguments. That is something that, based on my own limited experience, law school does a decent job of teaching. “Antiquated distinctions” matter, too. For example, whether your client is convicted of murder or manslaughter can depend on whether he exhibited “malice”—but to know what malice means in a legal context, you have to know the case law, some of which dates back to the nineteenth century if not earlier. But that’s not the whole story.
On top of that foundation—let’s call it “theoretical”—you need to have the ability to get things done. Not only do you have to identify legal issues—something that a traditional legal education does include—you have to be able to research them, come up with your own arguments, and write them down (and, in some cases, argue them aloud). This is an area where traditional law school classes may not do that well. Looking back, the most valuable classes for me—the ones that gave me the ability to write memos and briefs—were probably my first-semester small group (which included a legal research and writing component) and my clinics. Law schools in general are moving toward more and more clinics; I believe at Yale something like 80 percent of students do at least one clinic, and many students do them throughout school (I did six semesters). But you can still graduate from law school without doing a clinic.
So I think it’s true—and this is the kernel of truth in Segal’s article—that there are things that are better taught in school than on the job and that law schools could do a better job teaching. (Knowing what form to file where, however, is not one of those things.) There’s a valuable discussion to have, and many law schools are having it now, about how to make law school more practical and give students more of the skills they will need to be successful lawyers. Better writing, which Segal does mention, is something that could probably use more attention. (Although one could also ask how people are making it through the American educational system—and most law students did very well in college—without learning how to write well.) More exposure to real or simulated cases and documents also falls into this category.
Bear in mind, however, that these things require closer supervision (clinics in particular, since you’re dealing with real people’s real lives) and hence are much more expensive than traditional classes. And you can’t simultaneously say law professors are overpaid and that there should be more practical education. Law professors make more than professors in many other fields for the same reason that med school professors make even more: it’s compensation for foregone income in practice (which starts at $170,000 for a first-year associate in a big corporate law firm—almost twice as much as the average faculty starting salary). It’s true that there are some people, like me, who never considered working at corporate firms; but if you think law schools should offer more practical training, you will need even more people with significant firm experience, and they aren’t going to work for free.
So before we start teaching Forms 101 and Forms 201, let’s try to remember what school is for—even a vocational school. (Would you want your internist not to know, say, how the immune system works, but just how to order blood tests and write prescriptions?)
* And this isn’t the silliest example. As others (I forget who) have pointed out, he makes fun of an article entitled “What Is Wrong With Kamm’s and Scanlon’s Arguments Against Taurek”—but doesn’t point out that it is a philosophy paper written by a philosophy professor and published in a philosophy journal. That seems to me like the kind of error that requires a correction—the Times is basically our paper of record, after all—but there still isn’t one.
** Besides, how to “accomplish a merger” is a vague question. My first thought was that there are different ways: one is to do a straight-up merger between the two companies; one is for the acquiring company to create a shell subsidiary and merge the target into it; one is to create the shell subsidiary and merge that into the target. Which one you choose depends on various factors—in particular, whether you want to avoid a vote by shareholders of the acquirer. This is the kind of thing you do learn in law school, and is a lot more important than where you file what form.