The Problem with Legal Education

12/19/2012 04:28 pm ET | Updated Feb 18, 2013

I would like to offer a hypothesis as to why law professors have become obsessed with producing scholarly work that most members of the bench and the bar regard as by and large useless verging on absurd.

The lament has been heard before.

As early as 1936, Professor Fred Rodell wrote a farewell to law reviews. He said about everything that could be said about the matter, declaring there were only two things wrong with almost all legal writing: "One is its style. The other is its content."

Twenty years ago, the Honorable Harry T. Edwards of the D.C. Circuit Court of Appeals, a former professor himself, criticized the trend of law professors becoming more like professors in other academic disciplines and less like judges and lawyers. A symposium was convened to study his complaint.

Yet the disapproval has blossomed into resentment of late. Entire books have been published decrying the role of law professors as scholars. We are writers subsidized by our students.

Nowadays anyone who discusses legal education without urging the prompt destruction of law schools is said to deserve personal attacks. Thus I'd like to open with a disclaimer about my own background. I began my academic career as a clinical professor. For seven years, I supervised student attorneys who did the most practical work that made them ready to represent clients. Their case files were grandparents in child custody disputes, tenants in eviction cases, indigent individuals who nonetheless needed a will, and so on.

So I agree with critics. Almost all law schools have done much more than most observers would give them credit for, promoting skills training -- but there is still work to be done.

An additional caveat before proceeding. My intellectual interests are grounded in another sense as well. I'd rather describe the world as it is (from an original perspective), than prescribe how it ought to be. What follows is an attempt to do that, not a defense of the situation.

Here is what has happened. There is a sequence of steps. Each of them appears rational in isolation. But cumulatively they lead to consequences that no group of actors foresees much less intends.

Alumni and students, among others, want their school to be highly ranked. The value of their degree depends on it.

Deans and professors concur. Our career success and satisfaction is measured by progress in this regard. We move our school up, or we move ourselves up.

An important factor in rankings are peer surveys: you are only as good as other professors believe you to be.

To impress other professors, we aspire to be like them. Specifically, we as a collective body try to resemble the professors at the most prestigious schools. Either we imitate them or we hire them. Or, if we can't afford the famous names, we at least attempt to recruit as new colleagues the students whom they have mentored.

A digression. I'm reminded of an exchange that writers F. Scott Fitzgerald and Ernest Hemingway are reported to have had.

Fitzgerald remarked, "The very rich are different than you and me."

Hemingway replied, "Yes, they have more money."

Colleagues at the most elite schools can afford to undertake whatever scholarship they deem worthwhile. They can do so because their schools are supported by endowments that allow them to pursue projects as they wish. They are in the position to set the standards. Thanks to their reputation and network, their students are sought after regardless of whether they are prepared well -- or at all -- for a service profession.

The desire to avoid being perceived as a "trade school" becomes a self-perpetuating cycle. Professors have invented a metric for themselves. We assess our influence by "citation count." It's akin to Googling yourself. We track the number of hits for our names (and our rivals') in the database of law reviews.

People are rewarded on this basis: promotion, tenure, chairs, prizes, and raises. The number becomes not only a measure for merit but the primary means of defining it.

There is a school that symbolizes all of this. Yale.

A handful of law schools produces the majority of law professors. But none more so than Yale.

Ironically, Yale was the home of "Legal Realism" long ago. That academic movement, as its name suggests, was all about the law as it operates in the "real world." Rodell was a member of that school of thought. He supposedly never became licensed as an attorney.

It isn't all the fault of one Ivy League institution. All of the selection mechanisms of faculty members favor geeks. (I know: I'm one of them.) These preferences coincide with, if they do not directly cause, a distinctly cerebral orientation of the resulting community. (The corresponding desire to produce the "best" law school by conventional metrics means admitting students who happen to possess the highest test scores and undergraduate grades.)

The effect ratchets. The more sophisticated the work, the more solipsistic it seems. To be sophisticated, one must know what "solipsistic" means. In this enclosed environment, they have an expert who has a Ph.D in addition to a J.D., and consequently we need a pair with credentials to match.

Lest anyone wonder, I have nothing against Yale or its alumni. Some of my best friends are Yale graduates -- just kidding. (For the record, I went to the public law school down the road from where I grew up and wouldn't have considered any other place a rational choice back when "in-state tuition" was meaningful.)

My point is that Yale is Yale. Very few other law schools should try to become a pale Yale. They don't have the financial resources.

It's great to hire a smattering of their graduates, clutching a Ph.D with their J.D., who emerge into the market each year. But even in New Haven, they recognize the need to recruit people who were educated elsewhere.

There is another reason for the overwhelming mass of heavily-footnoted nonsense. Students at Yale and elsewhere are no less savvy than their teachers. They want to impress prospective employers. They know that a means of distinguishing themselves is that line on one's resume that says "Editorial Board" of XYZ journal. They have an incentive to found more journals.

Coupled to the boom in law schools (opening at a rate of more than one per year for a generation), the proliferation of student-edited publications, a true anomaly in academe, means an accelerating demand for material. Assuming the ratio of quality work to dreck has remained approximately constant throughout, the absolute quantity of lousy ideas mathematically must have increased. The signal is overwhelmed by the noise.

These dynamics are no accident. You want smart; we'll give you smart.