ezekiel's chariot - 張敦楷 (pjammer) wrote,
ezekiel's chariot - 張敦楷
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Why Law Schools Are Neither

Fellow UCSD and Guardian alum Peter Ko wrote a scathing indictment of law school during a miserable second at UCLA Law School which made the email-foward rounds until it dissapeared off the internet.

It's an amusing read, for those of us who never endured the process - and a warning for those who are contemplating application.

"The first thing we do, let's kill all the lawyers."
--King Henry VI (or, Pompous Quote Meant to Make This Piece Seem More Important Than It Is)

With all due respect to the Bard, he got it wrong. The problem isn't lawyers; it's law schools. Every year, thousands of high-achievers flock to the hallowed halls of mother justice where they undergo a transformation that would scare Dr. Jekyll. Perfectly likable people are turned into truculent, jargon-mumbling Hydes, schooled to a level of nitpicking that drives decent people mad. Three years later, the proud graduates are turned loose on a woefully unsuspecting society, full of piss and vinegar, and stripped of all common sense. Schools collect their fees, and the process repeats itself.

I know; I'm one of them. Nearly two years ago, I walked through the doors of the UCLA Law School reasonably happy, basically sensible and fairly well-adjusted. Now, two-thirds of the way through my mutation, I'm frequently miserable, single-minded, and able to articulate with a straight face logical distinctions that would make your eyes cross. And all without having practiced a minute of law.

In all the hubbub surrounding America's dissatisfaction with lawyers and the law, the main culprit has gotten off relatively scott free. If you want to know how a defect got into a car, you check the factory. If you want to stop nuclear proliferation, you shut down the plant. But, for some reason, when we want to figure out what's wrong with the law and those who implement it, nobody looks to the law school. Instead, tenured scholars work their magic in silence, twisting and warping every court-penned thought until the hopelessly dazed minions are left with but one conclusion: In the end, nothing makes sense.

All that is about to change. Herewith (early symptoms of my development), some observations about law schools. But be warned: In no way do I claim some pretense of completeness, fairness, or objectivity. I consider myself on par with the average law student. That means I've had my ups and downs. I've had some fairly laudable successes, and I've had days that led to screaming, cathartic drives down the Pacific Coast Highway. I had visions of greatness and now I fear a life of mediocrity. I am bitter, I am disgruntled, and I have no intention of being nice.

TEACH NOT, FOR THEY MIGHT LEARN
You've never seen brown-nosing until you've seen the ten minutes after a law school lecture. Students who have just spent the better part of the past 50 minutes snoring and drooling all over their blank notebooks flock to the foot of the lectern. "Professor! Professor!" they scream like prepubescent teens at a Motley Crue concert, "Please! Please! Tell me more about the rule against perpetuities!"

At Yale, widely regarded as the finest law school in the land, there's a professor who walks into the room on the first day of class, takes the Federal Rules of Civil Procedure in hand and heaves them out the window.
You see a problem here.

Let's get something straight right off the bat: Law schools are really nothing more than glorified trade schools. What ITT Tech is to engineers and future space shuttle contractors, law school is to lawyers and judges, except we get a doctorate. No one goes to law school because it's an interesting intellectual pursuit; everyone goes because they see "Avg. Starting Salary: $65,000" in U.S. News & World Report. And that's comforting to those of us who, unlike, say, free-lance writers, like to know there will be a next meal.

That said, I suppose you would expect law schools to do a bang-up job at teaching the law. You would be wrong. Surprisingly, these trade schools teach very little of the trade. Sure, there's the first-year legal writing and research course, but that mainly consists of two bits of advice. First, don't write like a lawyer. Translation: Don't write sentences like, "I hereby order said aforementioned party to cease and desist from writing, composing, recording, drafting, formulating, transcribing, communicating, corresponding, or scribbling, in the manner envisioned, of said profession, and to respect all practices generally understood thereto." Of course, that does nothing for people who don't write like lawyers, but don't write very well either. People like the 7th Circuit appellate court judge who wrote:

"Irrespective of whether the district court had the power it exercised with regard to these funds, and I generally entertain the idea that a federal court acting in equity inherently must and does possess the power to fashion a remedy appropriate to the accomplishment of proper ends, it appears to me from a review of the reported proceedings that the district court, assuming for the sake of argument that it possessed the power it exercised, prematurely and improvidently exercised it."

Early senility, or bad sentence construction? You tell me.

The second bit of advice from "lawyering skills" was how to do research. This learning experience, however, was hindered by the professor's connect-the-dots approach. We would get assignments that told us, step-by-step, what to do: Go to the library, pull a certain book, turn to page so-and-so, look for certain words, and find the cases that followed. Ta da! We'd just done research. This approach worked well--so long as we were always researching the same issue. But you can imagine the panic during summer jobs when we discovered the bystander theory of negligent infliction of emotional distress is not always a viable cause of action. Since our assignment sheet didn't cover this contingency, now what? To that, our professor had a snappy response: Ask a partner.

For this, they give tenure.

So what, you might ask, do law schools teach if not the law? Not much, really. Law schools aren't into teaching; they're more into discussing. They like talking about theories of interpretation, what ifs, policy considerations, that sort of thing. (An aside--or, seeing as how this is about everything wrong with law schools, a footnote: Law schools might tell you this "discussion" teaches you to "think like a lawyer." Nonsense. All it teaches you is seething contempt for the idiocy of your fellow man. See infra "enlightened young woman.") Nothing is ever settled, but you get to hear arguments from every perspective imaginable. That, and you learn which classmates should never see the back side of the bench. Classmates like the enlightened young woman who said, "I don't think the police should be allowed to trick criminals." Mr. Knauss's Chicano Studies professor would probably feel right at home.

Law school wouldn't be law school, though, if they didn't do things differently. Thus, the Socratic method. Perhaps you saw this medieval torture device applied by Professor Kingsfield in The Paper Chase. Briefly stated, it goes like this: Professor posits question to unsuspecting student; student mumbles answer; professor engages student in debate; professor ties student's reasoning into knots; student is embarrassed; professor moves on. The key to the Socratic method is there's no right answer. After all, "the law" is really no more than the argument that, as legal pundits like to say, "carried the day." That means there's almost always a fairly good argument on the other side of the ball that could just as well have "carried the day." Professors realize this; students do not. Whatever response the student has, the professor will seize upon the opposite and, summoning up all the righteous indignation he can muster, huff, "Well, your textualist reading is nice and tidy Mr. Ko, but what about page numbers? The statute says nothing about page numbers. Are you telling me the Secretary of State can't even decide to put page numbers in the pamphlet? Is that what you're really saying? That seems extraordinarily silly, doesn't it? Yet that's exactly what you're suggesting, isn't it Mr. Ko?"

Unfortunately or fortunately (depending on your tolerance for humiliation), most hard-core Socratics seem to have faded away. These are kinder, gentler times. Plus, a number of the, uh, more delicate social factions have convinced law schools that the gung ho approach was scaring away easily intimidated, yet otherwise perfectly capable potential barristers. As a result, many professors have junked the Socratic method for straight lecturing. Others still use it, but students can always "pass." To me, the decline of the Socratic method is somewhat disappointing. I mean, what are we going to do when we argue before a court: "Uh . . . I'm sorry Justice Scalia, can I pass?"


BUT FOR THE GRADES OF GOD...

Which is not to suggest law schools have degraded into entirely useless three-year rites of passage, where restless idealists bide their time until they have accumulated enough credits to take the bar exam. On the contrary, law school is the lion's den of competition. Law students tend to be edgy, confrontational, short-tempered and suspicious. This is a cutthroat business. Thousands of dollars are at stake, and there's only one way to win.

Grades.

Grades are to law students what profits are to a business. They are everything. Good students eat, drink, sleep, breathe and dream grades. Bad students only eat, drink, sleep and breathe grades. Pity the naive sap who comes to law school thinking, "I'm going to be involved. I'm going to have activities. I'm going to be well-balanced." Balance doesn't get you in the door. Balance won't help you see the hiring partner. Balance won't get you that clerkship. Find the person who says, "I don't really care about grades," and you've found the person who failed Torts first semester.

Given all this, you would think law schools place an extraordinary amount of emphasis on their grading systems. We've been down this path before: You would be wrong. Law school grades, as one of my more frank professors acknowledged, "are just a way to sort you." Do they reflect ability? In all but the rarest instances, no. Do they reflect knowledge? Absolutely not. Do they reflect hard work, brown-nosing or even skill in the underappreciated art of bribery? No, no, and no. What, pray tell, do grades reflect then? Basically, a good day, the ability to write really, really fast, and the professor's mood at the time of grading.

See, this is how a law school final exam works. For fifteen weeks, you spend 14 to 16 hours a day reading, outlining, memorizing, synthesizing, reconciling and outlining some more. Then for three hours of utter panic, you spill everything you can think of onto a piece of paper in a barely-legible Euro-chicken scratch/hieroglyphic script. Ever try analyzing a complex problem with 13 or 14 sub-problems, then committing it to paper in halfway intelligible form? Now try doing it in 45 minutes and you have a law school exam.

With the possible exception of baseball, no other profession in the world predicates success on jobs done so poorly. In law school, C-students write really atrocious, sixth grade-level essay exams. A-students are slightly more advanced--say, the seventh grade. Indeed, if law school were baseball, the A-students probably would be hitting about .180.

TO KISS OR NOT TO KISS

Naturally then, with grades such a crapshoot for all but the Breyers, O'Connors, Rehnquists and Scalias of the world, the wise (and desperate) student will seek out other advantages.

Like the professor's ass.

You've never seen brown-nosing until you've seen the ten minutes after a law school lecture. Students who have just spent the better part of the past 50 minutes snoring and drooling all over their blank notebooks flock to the foot of the lectern. "Professor! Professor!" they scream like prepubescent teens at a Motley Crue concert, "Please! Please! Tell me more about the rule against perpetuities!" (Regretfully, I must confess, I am not an innocent here. On occasion, I too have engaged in such conduct. If it means anything, while I was doing it, I felt silly, dirty, ashamed and--most importantly-- that it was getting me nowhere. I would pose my question, and the professor would stare blankly at me, the awkwardness of the moment sounding off in the background. Then, shaking his head in complete exasperation, he would curtly explain how, for example, I had absolutely no understanding of nude dancing in Indiana. When all was said and done, I inevitably ended up quietly shuffling away, mumbling to myself, "Yessir, I am an idiot.")

And for what? To the casual observer, brown-nosing might seem utterly fruitless. Most schools, after all, have anonymous grading policies, so unless you manage to sneak into your final exam some secret codeword known only to the both of you ("hornswoggle" has always been a favorite of mine), all brown-nosing gets you is a brown nose.

Or does it? Here's where it pays to have the wise counsel of those before you. For a profession that generally shuns character evidence, see, e.g., Fed. R. Evid. 404, lawyers have a bizarre affinity for references. Everywhere you go, they want three, four, five, even six letters of recommendation-- and, more than anything, they want them from professors. So it pays to have the professor actually learn your name.

I must say, though, that the whole thing strikes me as odd. With rare exception, professors basically see you the two to three hours a week they're lecturing, during which time you're one face in a crowd of 150, they do 90 percent of the yapping, and, if you're a talkative sort, you may utter one banal line. Occasionally, if you're that sort of person, they may also see you for brief spurts of time after class and during office hours. They almost never see your best work; in fact, since exams are graded anonymously, they may never knowingly see your work, period. They certainly don't see your work habits or even your nonwork habits. And if placed under a Halogen lamp in a room with one-way mirrors, they would be hard-pressed to say whether you prefer Democrats, women or rocky road. Professors, it seems to me, are hardly qualified to recommend to you a good restaurant, let alone recommend you to future employers.

Be that as it may, the game is the game. And the hard fact is that important people like judges and employers put an awful lot of stock in letters of recommendation. That's why every year from November to February the U.S. Postal System is deluged with form letters that read:

"I had [fill in name] in my [fill in subject] class. [He/she] was enthusiastic, bright and a [solid/ excellent/superb] student. I am confident that [he/ she] will do an excellent job for your [office/ chambers], and I [strongly (optional)] recommend [him/her] for the position. Please feel free to call if you have any questions. (Read: That's all I feel comfortable going on record with at this time.)
-- Sincerely, [Fill in name], [Obscure Donors/Dead Professor (e.g., Hugh & Ethel Darling)] Professor at Law, [Location] Law School"

The only thing better than lots of these letters is lots of these letters from really famous professors who have written lots of really incomprehensible, rarely read, but impressively titled law review articles on esoteric topics with no chance of practical application ever.

Larry Tribe comes to mind.

In any case, I suppose if you're so inclined, the art of brown-nosing could be construed as an elective of sorts. Because if you didn't realize it before you got to law school, you certainly realize it once you leave: Like it or not, if you want to go places in this world, it ain't what you know; it's who you know.

FINAL THOUGHTS

In the interests of full disclosure, I should note that law school isn't all bad. For example, you graduate (at least I'm told that's the case). That's right; if somehow you manage to wade through three years of the utterly nonsensical, on the other side is, for many, a paying job. Just in time, too. With graduation comes due those student loans you took out to pay for the whole sordid experience. Sixty thousand dollars worth, if you're anything like the average student. Suddenly all those government-subsidized iced mochas and mid-semester "relaxation trips" no longer seem like such a hot idea.

What's more, as an intellectual exercise, law school can be quite fascinating. If you're the sort who goes for creative theories totally divorced from practical application (for example, critical legal studies); if you're the sort who loves to mull over complex, intriguing, yet utterly improbable what ifs; in other words, if you're the sort who someday aspires to be a professor, then law school is the place for you. Because that's really all law schools do all day-- fantasize about how different things would be if the law wasn't what it is.

Where law school goes wrong is where the law itself often goes astray: when it has to deal with the real world. As practical instruction, law school is well-nigh useless--the equivalent, if you will, of ITT Tech churning out engineers who don't know a bolt from a lug nut. Law school graduates are lawyers in name only. Ask a newly-anointed juris doctorate recipient to represent you in court, and you're asking to get your ass whupped.

Worse still, tucked away in their donated ivory towers, most legal academians haven't the slightest clue what havoc they wreak. Indeed, many insistently defend their institutions with a simple theme: Law school *isn't* a trade school. It *does* teach you to "think like a lawyer." It produces legal scholars, not attorneys. This, of course, is poppycock. Law school is a professional school. To the extent that term means anything, the goal then should be to produce people who are capable, in a professional manner, of guiding the average schmo through the arcane world of writs, motions, and petitions. But, almost as if we've been transported to the parallel universe of Bizarro, what we have instead are generations upon generations of clueless attorneys who couldn't tell the difference between a writ, motion, or petition, let alone how to draft or file one. Professionals? Hah! At least medical school teaches where the body parts are.

If I sound angry, well, I am. Law schools frequently make a big to do about how lawyers have a greater "responsiblity" to society and the law. To wit, at almost every school, there's only one mandatory class other than the standard, first-year package of torts, contracts, criminal law and so forth: professional responsibility. This is no less than two-faced hypocrisy. Law schools have a "responsibility" to produce attorneys who are capable; they don't. Law schools have a "responsibility" to insure that when they "sort" students, they do so in a manner that reasonably reflects knowledge and ability to apply that knowledge; a 45-minute sprint essay intentionally designed not to elicit your best work does not. And law schools have a "responsibility" to insure that when they recommend a person, it's because that person is genuinely worthy of recommendation, not because he has a big mouth and impressive social skills; they don't. Of all those involved, the single-most irresponsible entity in the chain of legal education; the one body that has completely shirked its "responsibility" to the law and society; the only part wholly oblivious to what an utter failure it is, is the law school.

One day, I hope I'll be able to proudly say, I'm a lawyer. One year shy of obtaining my law degree though, I know that day is nowhere near.
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PS: Not a single reader wants to go see me in a Jennifer Aniston movie? I am not sure whether I should be proud of my readership, or concerned for Aniston's career.

Nope, just proud. Hah.
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