Thursday Talk*: Are Scholars Producing Lawyers?

At Volokh Conspiracy, Orin Kerr raises an old question, first raised by Richard Posner 16 years ago.

Back in 2007, Richard Posner published a very interesting reflection on the state of the legal academy in the form of a memorial essay to his colleague Bernard Meltzer.  It’s a very brief essay, only 3 pages long.  But Posner’s essay laments the loss of the former generation of lawyer-scholars that used to populate law schools. In the old days, Posner says, there were lots of law professors who were superb lawyers steeped in lawyering. These days, Posner says, that model is largely gone.  Today’s professors see themselves as academics first and lawyers second.  Posner suggests that the best education and the best scholarship is a mix of the two.  Both the lawyer-model and the academic-model are useful in their own ways.  A student should get a healthy mix of the two, and scholarship of both kinds is very useful.

Orin notes that having a Ph.D. has since become the norm for entry-level prawfs,

 It’s certainly not required.  But a majority of entry-level hires have one.

Doctorates, or their absence, isn’t a perfect proxy for the dynamic Posner describes.  But it’s in the ballpark.  And the trend toward even more Ph.Ds suggests that, on the whole, the trend Posner noted has accelerated.

He goes on to note that other developments run counter to this trend. While unmentioned, this grew following the “lost generation” of lawyers following the severe 2008 downturn in jobs for new lawyers, where law schools came up with the idea of producing “practice ready” baby lawyers to fill the gap between law grad and lawyers who were worth what law firms were paying.

Many schools have expanded clinics, hiring new faculty to teach clinics who are outstanding practitioners as well as academics.  They have expanded legal writing programs, bringing in excellent lawyers as professors of legal writing.  Some schools have added “professors from practice”,  leading senior practitioners who join the faculty to teach classes and participate in the life of the law school but are not on the tenure track.

Whether these programs were either as useful as academics wanted to believe they were, or taught by “excellent lawyers” or lawyers who preferred a paycheck to practice is another matter. One of the great failings of clinic programs was that they tended to be extremely doctrinaire in their focus. For example, there would be a clinic to help tenants, but there would never be a clinic to help landlords. Did they produce lawyers competent to practice landlord/tenant law or passionate tenant activists?

Many experienced lawyers saw a shift over this period away from baby lawyers who sought to become excellent lawyers, or to hone their skills, or who had any appreciation of experience, to baby lawyers who knew everything and could be taught nothing. They were certain they not only knew better than experienced lawyers, but were morally superior. This meant it was imperative that they informed lawyers and judges what they were doing wrong, and it was their duty to join arms to fight against the evils of their elders.

An old buddy of mine who was the head of training for a large public defender organization told me after he retired that his work was no longer viable. They won’t learn. They reject the idea that they have anything to learn. And they are terrible lawyers, even though they believe their brilliant. He could no longer take the defendants lost to their childish hubris and left.

Is there a connection? Has the legal academy raised a generation of baby lawyers who consider the nuts and bolts of lawyers beneath them, or at least lacking in the doctrinaire compulsion of reinventing the legal universe in the way their Ph.D. law professors taught them it should be? Can it change? Will it?

*This is like Tuesday Talk, only on Thursday. Wild, right?

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