The Purpose of Law School II

Recently, articles about law school and the legal profession have captured my attention more than is customary. I’m not certain why. There are obvious reasons: I’m nearing the bottom of my pile of to-be-written LSAC recommendation letters, I’m talking often about law school, I’ve had retrospective discussions about law careers, and Damages recently concluded its initial season. Uncanny how that show captured the essence of my first year of practice in the municipal finance department. Murder, intrigue, double crosses, nights at the financial printer’s proofreading offering statements . . .

This time I’ll point to Legal Blog Watch, where Carolyn Elefant has done all of the heaving lifting in a post titled Law School Rankings to Students: Don’t Tell Me What You Want, What You Really, Really Want. The entire post and its linked materials (except the Spice Girls’ lyrics) are worthwhile to those interested in law school. Briefly, law students rank “quality of teaching, bar passage rate, placement rate at nine months, practical skills training and faculty-student relations” as most important in evaluating law schools. The U.S. News law-school rankings don’t “consider quality of teaching, practical skills training or faculty-student relations” and give less weight to bar passage rates and placements. U.S. News bases 25% of its rankings on reputation among law professors and deans, 15% on reputation among lawyers and judges, and other factors declining in significance.

Trying to put the U.S. News Rankings into perspective for prospective law students can be frustrating. The rankings promise to impose order on the difficult choice of selecting a law school but like many analytic tools, people wield them without understanding how to do so or try to make them do more than they can. There’s just something irresistible, atavistic even, about numbered lists. I recall a student deciding between two schools who was convinced that a school ranked 63rd by U.S. News would provide him with a materially better education and job prospects than one ranked in the mid-70s. That’s nonsense. Finish at the top of your class in either school and you’ll have excellent job prospects in their markets. Finish in the bottom half of your class and it won’t matter if your school is ranked in U.S. News’s top 20. Many wanna-be law students forget that half of them will finish in the bottom half of their class, at least until Lake Wobegon Law School opens its doors.

The disconnect between law students’ wants and the U.S. News ranking factors reflects the yin and yang of law school education. Does law school introduce students into analytic thinking that is the backbone of legal problem-solving or does it teach a trade? Which is more important for a law school graduate, sophisticated understanding of legal principles or knowing how to search a title? This should not be binary question; lawyers should know the how and the why of law. There are extremely smart attorneys who are flummoxed by law’s mundane, boring, and necessary details and law mill practitioners churning out form documents who can’t see the forest for the trees. Elefant agrees with a blogger who “wonders whether law student[s] are sufficiently qualified to evaluate the quality of a law school, or to know what aspects of legal education are important.” She says “the most important skills that law school teaches are (1) writing ability and (2) analytical thinking.”

I think the answer is more complicated. Recent posts have discussed the difficulties some law graduates have finding jobs that pay enough to cover their law-school loans. Many students enter law school without any clear understanding of what lawyers actually do only to discover that (1) they don’t like doing it, (2), they aren’t good at it, and/or (3) it is not at all what they expected. The practice of law is stratified, with the handful of top graduates (not all of whom graduated from the U.S. News top-ranked schools) landing the best paying jobs at corporate firms and everyone else finding their niche along the continuum from “interesting and challenging” to “mind-numbingly and soul-suckingly dull.” Learn to analyze, learn to write, but if you are in the bottom half of your class at a lower-ranked school and $150,000+ in debt, you had better come out of law school knowing how to do something besides spot issues.

More Cause for Hopelessness

U.S. military involvement in World War II began on December 7, 1941 and ended on August 14, 1945, a period of 1,347 days in which Allied forces defeated the Axis forces of Germany, Japan, and Italy. President Bush’s “war on terror” began on September 11, 2001 and continues today, 2,135 days later and counting. This war has cost hundreds of thousands of lives and somewhere between $400-$500 billion and has polarized this country in a way unmatched since the era of the Vietnam War. What has it accomplished? The prosaic title of the threat assessment prepared by the National Counterterrorism Center says it all: Al-Qaida Better Positioned to Strike the West. Al-Qaida is thriving in Pakistan and, despite the time, money, and human cost, it has improved its financial, training, and communication resources. Pakistan, remember, has received billions of dollars in U.S. aid. Not a great return on our investment. The billions spent on intelligence and security produced a “gut feeling” in Homeland Security Secretary Michael Chertoff’s bowels that the United States faces an increased risk of terrorist attack this summer. This threat assessment does not even address how our disastrous Iraq venture has catalyzed creation of vehement anti-U.S. security threats.

Benefits of Police Training

As reported in The New York Times a study conducted by psychologists at the University of Chicago, the University of Colorado (Boulder), and the Denver Police Department reports that police officers have a greater ability than civilians to set aside racial bias when deciding whether to fire on potentially armed suspects. Participants pushed a button to either shoot or hold fire in response to rapidly viewing 50 threatening video images of men, half of them black and half of them white, each shown once carrying a weapon and again carrying something non-threatening. Response times showed the effects of racial stereotyping: “[b]oth officers and civilians took 10 to 20 milliseconds longer to make a decision when they saw either an unarmed black man, or an armed white man, compared to the other images. This tiny twitch of time reflects the cultural expectation that it is black men who are more likely to have a gun, experts say, and some studies suggest that blacks as well as whites are susceptible to it.” When pushing the “shoot” button the police officers, however, disregarded race, firing at about 13% of both unarmed black men and unarmed white men. Civilians shot at about 35% of unarmed black men and 29% of unarmed white men. The researchers ran the trial again and reached the same results, concluding that police are “less trigger-happy” than the public at large. The test did not take into account all of the factors that go into a police officer pulling the trigger, such as the effect of a hostile crowd or the influence of other police officers, but one doubts that untrained civilians would resist those forces better than police officers.

These findings bear on the recent posts about the Second Amendment (here, here, and here). Police officers shot the wrong person 13% of the time in laboratory conditions. Pro-gun forces presented the Virginia Tech shootings as an illustration why more citizens should carry weapons. The study suggests that, given the opportunity to shoot, armed civilians would injure or kill two to three times as many unarmed persons as do the police. In a situation requiring an armed civilian to make a split-second decision to fire, an unarmed black man faces better than a 1-in-3 chance of being shot. Unarmed white men fare only somewhat-less-fatal odds.

The Purpose of Law School

I’m catching up on my RSS feeds after a week of course prep and reading papers. Carolyn Elefant had a long post last week titled Should Law School Teach Skills?–a title that might provoke “duh?s” from non-lawyers. She draws from a number of sources (including Ann Althouse’s 2/20 NY Times Op/Ed piece and Jame’s Maule’s chock-full-of-links blog post), asking significant questions about the nature and purpose of legal education. I won’t attempt to restate all of her points. Their essence is that law schools teach too much about how to think like a lawyer and not enough about how to practice law. Learning how to practice law requires learning how and why clients respond to legal requirements, how to acquire, talk to, and maintain clients, how legal ethics shape a lawyer’s advice, how to run a law practice, and other practical skills. Her post, and sources from which she draws, explore the proper balance in legal education between theory and practice.

Much of what she says resonates with me. I graduated from law school with a strong sense of law as a profession, and an inadequate sense of the practice of law as a service industry. I entered law school with three years’ paralegal experience doing prisoners’ rights and legal services work and knew something about representing a client’s interests. Three years, one house, a marriage, and one child later I entered corporate practice knowing virtually nothing about the business of law. Having attended Northeastern University School of Law I had worked four different co-op jobs, a total of twelve months’ time researching and writing briefs and motions, and had that experience advantage over many other recent grads, but my education in the practice of law only began in earnest as a young associate in a large Boston firm. If I could make one change in the curriculum I’d require that each law student take a course in financial accounting, a position that would make the 25-year-old One-L David Randall weep over my failed idealism. I didn’t know then that the ability to understand a balance sheet and income statement is critical on both sides of the aisle.

I’m less critical of my law school experience than many of my lawyer friends. Since its reincarnation in the early 1970s Northeastern Law School has always attracted students who question the nature and purpose of legal education, and in my years (1978-1981) we discussed the social implications of our cases at great length. NUSL’s corporate law offerings were thin in those days, a situation which I understand the school has addressed over the years, and I took little advantage of what the school had to offer because I had negative interest in corporate law practice until a third-year big-firm coop. Three years’ experience in the legal writing and practice course, the last two as a TA during which we created a new problem that the school used for the next decade, gave me great confidence in my ability to find, analyze, write about, and argue the law. What I needed, and what more law grads need today, is training in translating issue-spotting ability into dollars-and-sense advice.

Embrace the Gray*

This week a discussion of direct and indirect regulation turned to cigarettes. The legal regulation of cigarettes turned to other regulated products and behaviors, such as New York City’s ban on trans fats and state laws requiring adults to wear seat belts. Some students supported such laws because they promote societal good or reduce societal costs. Others criticized them as unwarranted “nanny state” interference in personal decision-making. (No one argued against laws regulating the effects of second-hand smoke or requiring use of automotive restraints for young children.)

A student emailed me after class, annoyed at the inconsistency in the laws we had discussed. He made a point I have heard from many non-lawyers, although he defines his frustration more clearly than most: “If I knew nothing about math symbols, only numbers, and you told me that 2 + 2 = 4, and 4 + 3 = 7, I would quickly learn how to do similar addition problems.” He wants law to achieve the same certainty. He cited the different ways in which the law regulates trans fats, marijuana, cocaine, and heroin, alcohol, and cigarettes. He also cited seat-belt laws. He asked “So why the inconsistency in the law?” Everything on his list is capable of providing some amount of personal pleasure, can have harmful consequences for the person who engages in them, and imposes direct and indirect social costs. He did not argue a particular agenda for or against anything on his list. To someone who teaches law to college undergraduates who (mostly) will not be lawyers, his question is more profound, : “I just feel that if I were to look at 2 + 2 = 4 and 4 + 3 = 7, I should be able to figure out similar problems . . . Trans fats, no seat belts, marijuana, and cigarettes should, based on the similar facts they share, all be outlawed or all be allowed.”

Until I started to teach I never thought at length about this intense desire for legal certainty. I saw it in clients, of course, but in the context of advising them about specific problems. At big firm billable rates they did not engage me to muse about the nature of the American legal system. When surrounded by lawyers, there is a comfort level with the law’s inherent ambiguity. We spend three years in law school distinguishing this case from that case, arguing why X and X1 are materially different and why Y and Z are the same thing. Nature, training, and experience enable most lawyers to live comfortably in the gray zone.

The next day I used this topic as a springboard for discussion in the class where it began. How do my students respond to the law’s ambiguity? “That’s the way the law has to be” said the first few speakers. Another student raised his hand. “I’d like to talk more about what is legal and what is illegal, and talk less about everything else.” I walked to one end of the board and wrote “legal.” Dragging the chalk along the board I drew a line to the far end and wrote “illegal.” “Law is pretty clear at these extremes” I said. “Most of what you encounter in business will not fall at either end. It will be here.” I drew a large oval around the middle of the continuum. “This is where the questions are most interesting.” He did not appear satisfied. He wants a checklist of behaviors so he knows what will land him in jail or make him liable for someone else’s harm.

I understand his desire for certainty. We are drawn to binary solutions for complex problems. But, as I said in class, the law only becomes more complex because we humans find new, precedent-setting ways to do each other harm. Teaching law as a checklist would create greater certainty but less understanding. As frustrating as it is for many of them, I believe I serve my students better by teaching why the law is often ambiguous.

*Last semester a student who did poorly on an early exam talked to me on the eve of the second exam. “I was thinking too much about the law in black and white” he said. “For this exam I’ve learned to embrace the gray.” He did much better the second time around.

“cRANKy”??

I followed a story today to cRANKy, “the first age-relevant search engine.” How does an age-relevant search engine differ from an age-irrelevant search engine? According to a press release dated today, cRANKy is “designed to deliver the most targeted search results by applying a 50-plus lens to every query . . .” The site is part of Eons, “a 50-plus media company” founded by Monster.com creator Jeff Taylor. In cRANKy’s world those who are 50+ want their data pre-chewed and still cannot process more than four pieces at a time.

I started my exploration with the “Top cRANKy Searches 2006.” Example: Top Search Number 3 is Body Mass Index. A cRANKy sidebar links to a list of its most popular search terms for 2006, which overlaps yet is different from the Top cRANKy Searches 2006: Alternative Health, Entertainment, Finances, Health/Disease, Hearth & Home, Hobbies / Fitness, Ones to Watch, Relationships, Travel Spots, Web 101. Selecting Ones to Watch in 2007 I found ten subtopics: Brain Builders, Stephen King, Blogs, Work From Home, Elderhostel, Make New Friends, Jobs After Retirement, Arthritis, Online Dating, and RVs. Putting aside the obvious that (save for Stephen King) these are not “ones to watch” but Trends, perhaps, an image began to form of the cRANKy demographic. I pictured a graying couple hopping from elder hostel to elder hostel in their RV, reading Cujo, completing Sodoku puzzles with their new friends, posting blog entries (“Five Fun Facts About Phoenix”), and making pin money by selling macramé plant hangers at craft sales. I followed the first BrainBuilder link to a results page with abundant white space. Two sponsored links appear at the top of page. Below are only four organic results, followed by another four sponsored links in smaller type. Finding additional organic search results required clicking to page 2 for results 5-8, to page 3 for results 9-12, and so on. The four-results page is a cRANKy selling point, its response to the sheer overwhelming mass of a typical Google search. (When was the last time you navigated beyond page two or three of Google results?)

How is cRANKy for general search? (As I do with other trademarks like iPod I’m trying to be fair and enter the mark as it is written, but its inelegance is off-putting). If, say, a cRANKy user wants to understand this “Facebook” her college-aged daughter is talking about, can she get her answer cRANKily? I entered “facebook” in the search field and received a query back–Did you mean factbook?–followed by the standard four results: number one to a Business Week article, number two to a Technorati page of blog posts tagged “facebook,” number three to the Wikipedia Facebook entry, and number four to facebook.com. Somehow I don’t think the cRANKy demographic will want to make sense out of the technorati page, but to be fair the site is new. It intends to rank results based on user feedback (how very Web 2.0-ish!) and in six months, perhaps, the results will better reflect the cRANKy spirit.

Would I recommend this search engine tricycle with training wheels to my 85-year old father-in-law or the residents of the continuing care retirement center on whose board I sit? Not yet.