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Oliver R. Goodenough

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Teaching Real Law for the 99 Percent

Posted: 01/18/2012 4:22 pm

A week ago, Washington, D.C., was awash with law professors, me among them. This generally earnest crowd gathered for the annual meeting of the Association of American Law Schools (AALS). Although "buzz" is often too animated a term for discussions among people who are fascinated by the details of civil procedure, this year the hive was under threat and buzz there was in plenty. Over the past months, there has been a spate of media attacks on our profession and the value of the degrees we provide. Most often mentioned at the meeting was a particularly critical article in the New York Times. It featured a group of recent hires at a prestigious law firm who were surprisingly ignorant about the mechanics of consummating a merger and acquisition transaction -- just the kind of work they had been hired to do. The clear take-home from the article was that legal education -- my calling in life -- needs thorough reform because it is doing a poor job in preparing its customers for the work of being a lawyer.

Towards the end of the fall term, while I was chewing the bitter sandwich of this criticism, a student provided me with a much appreciated counter-flavor. As we went over a piece of her work, she told me the Times article was a literal take-home for her -- her father had sent her the clipping and asked, perhaps a bit pointedly, whether it reflected her experience. Happily, my course, "Representing Entrepreneurial Business," gave her a reply; our capstone project involves conducting a mock closing in just such a mergers and acquisitions deal, with each student preparing the necessary documentation from the selling client's perspective.

I don't expect this one anecdote to counter the Times attack on the value of a juris doctor degree, but I hope it provides a wedge to get some additional data points into the discussion. First, the Times is significantly behind the curve in its reporting. For a couple of decades now, there has been a trend toward more "hands on" teaching in most American law schools. At my home institution, Vermont Law School, we have a whole suite of clinical offerings aimed at providing supervised training in the active conduct of being a lawyer. My own course on entrepreneurship is part of an innovative cluster called the General Practice Program, where students learn both theory and practice for many fields of law through representation-based projects for simulated clients. Other programs send students out for internships, externships and what we call a "Semester in Practice," where the important, if somewhat abstract, lessons of traditional classroom teaching can be enriched by the complementary lessons of practical application. Making sure our graduates have a solid grounding across the spectrum of what lawyers actually do is one of our baseline goals.

While Vermont Law School is a leader in the breadth of its practice-linked offerings, we are hardly unique. As the sometimes indignant discussions at the AALS confirmed, most schools have at least some of the pieces of the mix; many join us in emphasizing such classes. So what happened to the students the Times focused on? This brings us to another data point -- the over-emphasis on prestige-markers in hiring by "big law." The "leading" big firms have traditionally held themselves out as the best and the brightest. They have bolstered this image by recruiting from a few high-prestige target schools that often emphasize their ability to filter good-test taking and argumentative cleverness about obscure topics over imparting a more nuts and bolts knowledge about law.

Now I have a confession to make -- I was educated in just such a filter and made my start with a downtown New York financial firm. Back in my somewhat distant day as a junior associate, when the arms-race for talent and billing was rather less advanced, the firm paid decent attention to training and was willing to put up with the fact that my formal education in civil procedure was entirely focused on a very narrow and abstract point of jurisdictional theory. Whatever the merits of the system then, a number of speakers at AALS confirmed that the reality now is that such firms find they are stuck with high-priced talent with great pedigrees and little experience whom their clients won't pay to train any more. If that's what the firms don't want, however, they need to send different signals back up the recruiting chain and visit different schools. The kind of training big law now claims to want exists; big firms just have to target it in their hiring decisions.

The final data point for consideration, however, calls the argument itself into question. For too long, too many of us have disproportionately fixed our attention on the elite, finance-driven segment of practice as defining legal excellence -- a fixation the Times coverage has shared. I am not arguing that there isn't a constructive place for careful Wall Street lawyering; that would be hypocritical given my own career path and the business law classes I teach. What is shameful, however, is the way that this corner of practice has come to define so much of American law, from its delivery to its economics. Law school costs have grown dramatically as well. Effective legal representation has increasingly priced itself out of the reach of most of America's residents and most of America's enterprises, non-profits and causes. We need to remember that law belongs to the 99 percent as well.

The legal profession isn't the only sector of our society that has focused excessively on the needs of moneyed power, but it can help lead the way to redressing the balance. We in the AALS member schools need to graduate lawyers who are steeped in theory, policy and analysis, educated in the skills of practice and recommitted to the ideals of equal justice before the law for real individuals and not disproportionately for corporate "persons." And we need to find ways to make that training more economically feasible for those future practitioners. That would be legal education reform indeed.