Especially at law schools in the upper echelons of the U.S. News & World Report rankings, the core of the faculties seem indifferent or even hostile to the concept of law school as a professional school with the primary mission of producing competent practitioners. ... Regardless whether they possess a Ph.D., a vastly disproportionate number of new law professors graduated from so-called “elite” law schools, which not coincidentally employ the largest percentage of impractical faculty. “Law professors are a self-perpetuating elite, chosen in overwhelming part for a single skill: the ability to do well consistently on law school examinations, primarily those taken as 1L‟s, and preferably ones taken at elite „national‟ law schools.”
Maybe 20 years ago law schools valued things like high grades, law review membership, and prestigious clerkships. Not any more, however. As far as I can tell, what is valued these days are:
- Ability to network with people you knew in graduate school that got hired last year
- Having a PhD
- Having multiple publications, even if they demonstrate the author's utter lack of doctrinal knowledge or inability to do basic legal research
- Knowing what Rawls (or Dworkin) would think of X
- Being able to run linear regressions
- Being able to run regressions about what Rawls would think about X
Not that any of this has a goddamn thing to do with the practice of law. Hence, while I disagree with the factual claim, it's hard for me to disagree with the next part of Newton's rant:
Could [a typical law school] professor whose primary scholarly interest is criminal law and procedure effectively prosecute or represent a criminal defendant at a felony trial? Could such a professor who writes law review articles about the First Amendment effectively represent a client in a civil rights litigation? Could such a professor whose expertise is securities regulation effectively represent a client or the government in an S.E.C. enforcement action? Imagine such professors being first-chair counsel in a complex civil or criminal litigation who must interview potential witnesses, take depositions and engage in electronic discovery, file and respond to summary judgment motions, conduct voir dire, present the testimony of an expert witness, cross-examine (and impeach) hostile witnesses, and make closing arguments to a jury. There are some full-time non-clinical law professors capable of competently representing clients in real cases, but they are the exception, not the rule, particularly among professors hired in recent years at highly-ranked law schools.
How can we expect law students to become competent practitioners if the core of full-time law faculties, notwithstanding their scholarly prowess, do not themselves possess even the basic skills required to practice the type of law about which they teach and write? How can we expect law students to become competent and ethical practitioners when the faculty members best suited to teach them the necessary practical skills and ethical lessons from real-world cases – clinicians, LRW professors, and adjuncts – are marginalized and even openly held in disdain by some members of the “main” faculty?
One good thing about UCLA, I think, is that we don't treat clinicians differently than other faculty. And we have some great ones. I can think of several of our clinical faculty whom I would be delighted to have defend me in a lawsuit or criminal case. On our non-clinical faculty, moreover, I can think of maybe three of my colleagues who I would want to represent me in a transactional or other negotiation setting.
Even so, I take Newton's point. Indeed, in the spirit of Matthew 7:3-5, let's admit straight up that I would be a disaster in the courtroom. And so, I suspect, would a lot of my other colleagues.
Indeed, I think Newton understates the problem. He focuses on litigation. If you think about transactional lawyering, however, law school does an even worse job. What part of the case method gets somebody ready to handle a complex leveraged lease?
To my way of thinking, whatever flaws the old criteria may have had, at least they valued basic legal skills, something the new criteria utterly ignore.
The big question is whether the collapse of the legal hiring market will eventually lead to a backlash that finally forces law schools to think seriously about hiring criteria.
PS: I don't use rant pejoratively. A good rant is a thing of beauty.
Update: I highly recommend Why Can't Johnny Research Practice Law? Or, would you hire a law prof to represent you?, a long post that basically supports Newton's argument and provides lots of useful background.
