the future of law schools

Rahm Emanuel has said that one should never waste a crisis, and the powers that be in American law schools appear to be taking this to heart. Every day or two, there is a new comment to the effect that the "gravy train" is over for law professors, who will hereon out have to earn their keep like everyone else in an increasingly harsh society. Paul Caron, the author of TaxProf blog, talks about the need to apply "MoneyBall" principles to law professors. JoAnne Epps, dean at Temple, says they need to reduce theory and focus on practical training. Students, understandably frustrated by an awful job market, are if anything more hostile.

Since I teach at a middle- (OK, upper middle-) range law school, and make less money than anyone I went to law school with, I'm not quite sure what gravy train people are talking about. But I have a strong feeling of deja vu, together with a sneaking suspicion that--as Mr. Emanuel's remark suggests--a lot of people are using the economic crisis to push policies that they would have supported in any event. More specifically:

1. I simply don't buy, and have never bought, the "practical lawyering" argument. At least 90 percent of law school is devoted to teaching practical subjects, with pure theory relegated to a few advanced seminars. The difference is that the better law schools, like the better schools in any profession, try to emphasize difficult, cutting edge issues rather than easy or safe ones, and to hire professors who are cutting-edge thinkers rather than local practitioners looking for an easier life. This is why the more "theoretical" law schools almost invariably do a better job placing their students than the ones who supposedly specialized in the "real world" of law, and why many or most of the "practical" teachers use teaching materials prepared by people at these supposedly out-of-touch schools. The idea that law schools should be more practical is thus something like the statement that pitching is 75 percent of baseball: people say it, but on one acts like they really believe it.

2. The American university, for all its faults, remains unquestionably the world leader, precisely because of its intellectual creativity and willingness to invest resources in long-term projects. By contrast, American law firms (and much of American business) have adopted a short-term, "eat what you kill" philosophy that has come close to bankrupting the country on a financial and a moral level. For the law firms to tell the universities "Be more like us" is at best unconvincing and at work incredible chutzpah.

3. The actual policies that result from the hard-nosed, "moneyball" approach to law school--i.e., more centralized management, the increasing reliance on adjuncts and other nontenured faculty (why pay someone $150,000 a year when you can cover their classes with part-timers at one third the cost?), and eventually a full-blown assault on the tenure system and the concept of faculty independence/faculty governance altogether--are, conveniently, precisely what university managers have been trying to implement for several years before the crisis, anyway. At my own law school, we do less and less tenure-track hiring, and the university (citing the state's economic crisis) has refused to pay previously negotiated raises to faculty members. But it had money to pay $300,000 to a new dean at a sister campus, who was politically connected and had no significant scholarly background; the salary for the new "chancellor" of our campus, who is also politically connected, is sufficiently high that no one is even willing to talk about it. It goes without saying that the schools applying these tactics--witness the University of California system and several of the midwestern state universities--almost invariably decline in quality, having been overtaken by other schools who hire their best "theoretical" talent away from them.

What I think is really happening is that the crisis is re-dividing American law schools--not to say the entire country--into "have" and "have not" categories, with the "haves" continuing to operate on the research-driven, independent-faculty concept and the "have nots" facing increasing pressure to adopt a low-wage, centrally managed, essentially trade school model. The none-too-thinly-disguised message to students at these latter schools is to give up on asking difficult questions and accept their role as cogs in a soulless money-making, or at this point money-losing, machine. The economic crisis will eventually pass, but that damage resulting from this conformist and mediocre view of legal education may be more difficult to clean up.

last british world war one veteran dies

Harry Patch, the last living British soldier from World War I, has died at age 111. There is apparently one living US soldier, Frank Buckles, who is 108 and lives in West Virginia. I am not sure about other countries. People like this are extreme cases, but it does serve to bring home the extraordinary losses of war. Patch participated in several major battles, so it is likely that several of his comrades died over 90 years ago. No Churchill, no Beatles, no Princess Diana; nothing. This is not to say that the cause wasn't worth it, only that there are not many human activities which are paid for by people who haven't really started living yet: this one is.

On a rather more trivial note, it makes me feel older, too. When I was a child anyone over 40 seemed to be a World War II veteran, and World War I veterans were younger, sometimes quite a bit younger, than veterans of the second war are now. My grandfather was actually too old, or in any event too infirm, to serve in it. We found a letter that he wrote to his brother, who did serve, urging him in the polite language of the era to be careful what women he hung out with. That was my grandfather: always offering advice, some solicited, some not. Now I write a blog and offer opinions that some people want, and some don't. Some things never change.

dreams from obama

I took advantage of visiting day at camp to finish reading Barack Obama's autobiographical book, Dreams From My Father, which he wrote in the mid-1990s. (Obama's second, more overtly political book, The Audacity of Hope, is better known but considerably less interesting).

The book is surprisingly good, if not as literature, then as an insight into the President's values, mindset, and character. The story is divided into three parts: "Origins," which describes Obama's youth in Hawaii, Indonesia, and other locations; "Chicago," which describes his work as a community organizer; and Kenya, which describes his trip to his father's homeland in the late 1980s (before law school) and what he discovered there. The first part is by the far the most entertaining, describing the contradictions in Obama's family and upbringing with wit and humor; surely it is the only book in which a presidential candidate admits that he tried every drug he could get his hands on and avoided others out of fear rather than morality. By contrast the second and third parts drag a bit--I found myself putting it down at times to read newspapers and other fare. But it is worth the wait, for in the last thirty pages or so Obama comes to terms with his father's limitations, learning lessons that are vital to understanding his approach to politics and his presidency.

What Obama learns is that his father, although extremely intelligent, failed to accomplish his dreams because he lacked the political and human skills to match his intellect; more precisely, because he clung to inflexible, outmoded values rather than attaching himself to a larger community that could mediate the tensions between old and new in a constructive manner. Obama himself puts it this way, describing his thought upon viewing his father's grave:

"Oh, Father, I cried. There was no shame in your confusion. . . . There was only shame in the silence fear had produced. . . . It was the silence that betrayed us. . . . [Western technology] could be absorbed only alongside a faith born out of hardship, a faith that wasn't new, that wasn't black or white or Christian or Muslim but that pulsed in the heart of the first African village and the first Kansas homestead--a faith in other people."

I think this passage is extremely important because it reveals a number of repeating patterns in Obama's thought. The first, reflecting his experience in Africa, Hawaii, and Indonesia, is that human connections are more important than abstract beliefs: that there is an essential core of human values which is common across religions and cultures and can be appealed to notwithstanding these differences. This is an extremely noble sentiment, and accurately reflects the direction of progressive thought in our era, but can be dangerous in dealing with places (the Middle East, the Republican Party) that have not necessarily signed on.

The second is that flexibility, compromise, and adjustment--dare I say feminine values--are ultimately the key to human happiness rather than stubborn adherence to principles however deeply held. This is, interestingly, almost precisely the opposite lesson that George W. Bush learned from his father, whose presidency was believed to have failed because he did not adhere to principle on taxes and other matters. Once again, Obama's view is closer to that of progressive, postmodern thinking on politics and other matters: but it may result in an exaggerated willingness, even desire to compromise on principles (in health care, Iran, etc.) where they would better be held to.

I don't want to overstate the parallels between Bush and Obama: the latter obviously has far more self-awareness, and his substantive values are almost precisely opposite in nature. But it is interesting that each of them--both raised primarily by their mothers--is so obsessed, in his own way, with righting his father's perceived mistakes. In Bush's case many observers believe that he wound up less successful than his progenitor. Will Obama do better?

how i spent my summer vacation

Owing to the summer season and multiple deaths in our extended family, I've been involved in more small talk than usual lately. One of the questions that often comes up at my age is what are your kids doing for the summer, or (if they're out of college) what are they doing altogether? The answers are often ideologically inspiring and yet vaguely predictable. My daughter is in Central America building housing for the poor. My son works for an environmental group in New York. My daughter did volunteer work for Obama and is now doing Teach for America.

There's nothing bad about any of this, and a lot of it is downright admirable. But it's hard to avoid a few difficult questions.

First, who is supporting all of these people? While some live modestly, it's hard to believe that all of these middle class kids have suddenly given up restaurants, decent clothing, and health care. Either parents (directly or indirectly), or charitable donors (supported by tax deductions) are likely helping out: hardly a great evil, but difficult to sustain indefinitely.

Second, how much good can be accomplished by people armed at most with liberal arts degrees? When I did volunteer work--and talked to people who did more--the pressing need was always for specialists (doctors, engineers, speech therapists) who could help with the technical and (yes) boring problems that real people have in the real world. The fantasy of an idealistic Yale student teaching Third World women about health and birth control is an appealing one: but it usually remains a fantasy.

Third is a more philosophical problem: what happened to growing up? When I was in college I worked at Burger King, as a camp counselor, and as a clerk/typist at the Public Health Service. I wasn't very good at any of these jobs, and they did little or nothing for my resume. But I learned an awful lot about the real world: what is was like to have a job with low pay and few if any real legal rights; what sexual harassment was, although no one yet used the term; most important, that people who looked and sounded different from me, and had little or no formal education, could be much smarter and more effective than I was in real-world situations. I also learned the simple joy of earning part of one's own support and spending it, wisely or not, on the things that kids spend money on. It's possible, even likely, that people learn similar lessons on more idealistic jobs. But people who do homeless volunteer work don't actually become homeless, don't share the experience of the "other" in the informal, totally un-self conscious way I shared the experience of others at Burger King or the PHS. Instead they are there to "help" people: an honorable goal but one fraught with danger on so many levels.

I worry also where these kids will be in 10 or 15 years. I remember a lot of my own colleagues who said they would never work for law firms and devoted their 20s to various kinds of public interest work. After a few years--seeing the world more or less the same as it was when they started out--they decided they would "change the world from the inside" and started down the corporate path. So here are I am, thirty years later, teaching law school and with a spouse who works for a charitable foundation while they pile up money on Wall Street or what's left of it. I'm not saying this will happen to all of them or even that I will take much satisfaction if it does. But I think we are setting a lot of people up for a lot of disappointment that a dollop of realism, and a chance to be kids, might go a long way toward correcting.

sotomayor's testimony

I lean against the nomination of Sonia Sotomayor, who I think is a decent but not especially outstanding judge who has been in the right place at the right time for most of her career. Since her nomination seems assured, however, I think her testimony is most interesting for what it says about the confirmation process and the likely future of the Supreme Court. For the liberals who support her, I don't think it is particularly encouraging on either count.

Sotomayor is most famous for saying that a "wise Latina woman" could use her experience to reach better or at least more balanced decisions than her white male counterparts, adding (I'm not sure if this is a direct quotation) that empathy as well as intellect was important to effective adjudication. Whatever one thinks of these statements, they are a succinct and accurate summary of the philosophy that inspired her selection and, indeed, of the liberal approach to the judicial process as it developed over the past half century. By backing away, slowly but surely, from these assertions, Sotomayor is implicitly conceding the moral high ground in this dispute and emboldening those who oppose these concepts altogether.

The defensive posture above also bodes poorly for the future of the Supreme Court. Perhaps this is all a matter of strategy and Justice Sotomayor will turn out to be a feisty defender of various liberal positions. But it seems at least as likely she will trim her sails in an effort to avoid characterization as a "diversity" justice, or at a minimum that she will lack the conviction (not to say votes) to slow down the court's increasingly assertive march to the right. Barring the untimely death or illness of one of the conservative justices, that march seems only likely to accelerate, and an opportunity to have provided a serious ideological challenge to it will have been lost.

israel three, palestinians invisible

Controversy over a TV ad by Cellcom, an Israeli communications company, which seems to make light of the "separation fence" built by Israel on the West Bank. The ad shows a group of Israeli solders on patrol when an object flies over the fence in their direction. At first the soldiers are suspicious but relax when it bounces and turns out to be a soccer ball. Unsure what to do, they decide to kick it back over the fence . . . upon which it returns a second time, they relax further, and an impromptu high-altitude soccer game begins with the (unseen) Palestinians on the other side of the fence. "What do we all want?" asks the voiceover. "Some fun [keif], that's all," adding what appears to be an Arabic expression for emphasis. Israeli Arabs have complained that the ad makes light of the separation fence, while one blogger said it "breaks records in bad taste, even by Israeli standards."

I would have to agree that the ad is in questionable taste and should probably be withdrawn. But I see it as more sad than provocative. The ad seems to me not so much dismissive or hostile as hopelessly naive, expressing a belief that the humanity on both sides will break through despite the seeming hopelessness, and asymmetry, of the current situation. It is significant in that it captures perfectly the attitude of a certain sort of liberal Israeli who, while emotionally sympathetic to the Arabs, doesn't make any particular effort to learn about them or their actual situation and attitudes. It's a little bit like those old Coca Cola commercials bearing the tag line "I'd like to teach the world to sing": except by that point American racial attitudes were already in the process of softening. In the Middle East, they just seem to get harder.

exams, "merit," and the ricci case

Interesting op-ed by Lani Guinier and Susan Sturm in today's NY Times, arguing that the promotion exam was flawed and the "merit" argument accordingly unconvincing in the case. I have always thought this the weakest part of the plaintiffs' argument: it seems odd to me that firefighters, especially veterans, should be evaluated by a written test, and the winners seem to have been better crammers rather than better performers. This, although I am principle opposed to affirmative action, and the case was appealing to me on ideological grounds.

The biggest problem with Guinier and Sturm's argument is one of consistency. Sure, it's foolish to evaluate firefighters by written exams: but isn't it equally foolish to evaluate college applicants in the same way? Didn't Guinier and Sturm get to teach at Harvard and Columbia, in part, because they did well on law school exams, which (like those in New Haven) reward memorization and are eminently crammable? The problem here is that we are sending a message that written exams are fine for determining entrance into the elite, but are irrelevant to working class people, especially if others (themselves drawn primarily from an elite pool) don't like the outcomes. Presumably Guinier and Sturm would agree with this, and prefer to reduce the reliance on exams at all levels: but until this happens it's going to be difficult to convince the Ricci plaintiffs that they don't have the right to cram their way to success like everyone else.

obama and iran

With the repression in Iran at least temporarily successful and Russia effectively blocking meaningful sanctions the military option is returning slowly but surely to the table. At this point no one seriously believes that sanctions will work or that the Iranian Government, which is using alleged foreign interference as a justification for its internal crackdown, has any serious interest in negotiations. The real problem is that no one is quite sure which is worse: an attack that may or may not succeed or a nuclear Iran which may or may not fatally destabilize the Middle East. The difference in perspectives between the United States (which can afford to take some chances on this score) and Israel (which can't) is also significant here. My bet is still that Israel will take some kind of action, but it isn't clear when or how: as one wag put it, Iran has been five years from the bomb for twenty years now, and it's unclear when the game is actually up.

One interesting theory is that Iran may actually want Israel or the US (and preferably both) to attack it, as the only way to salvage a discredited regime. Thus, it could be argued, Obama is actually being rather shrewd keeping them guessing. In this respect, the alleged "misstatement" by Vice President Biden, who suggested the US might not hold Israel back only to be corrected later by Obama, may have been part of a deliberate misinformation campaign. (The mistake, if it was such, came in a taped interview, and presumably could have been corrected before the show was broadcast.) Time will tell; but time, from the Israeli perspective, is running out.

happy birthday america

Snapshots of another July 4 weekend . . . a day early celebrating my mother's birthday (yes it's on the Fourth), first time in 50+ years without my Dad, everything else weirdly the same . . . killing time in an upscale Long Island shopping mall, which is filled with Italian stores but hasn't quite figured out the amenities, like offering shoppers a place to walk, sit down, or relieve themselves . . . today the joy of juggling two parades with the Jewish Sabbath, a convenient reminder that Jews will never be and perhaps shouldn't be perfectly integrated (although they fight about these things in Israel too) . . . the papers say the fireworks this year will be more environmentally constructive, or maybe just less destructive, than in previous years . . . the neighbors complain about street traffic on a street that gets, perhaps, three cars in an hour . . . the two of us alone in a house pleasant but almost too quiet with the kids at camp and everything shut down for a day

How is it that every country seems to have won its independence in the summer? A quick count shows the US (July 4), Canada (July 1), France (July 14), and India (August 15) among places that I've visited. Italy has two national holidays (June 2 and April 25) but late April is almost the summer there especially when one figures in the "bridge" to May 1 (May Day) which many take off altogether. Israel goes by the Jewish calendar so it's usually in May, sometimes very late April, but always hot. The only institution I can think of that has its biggest holiday in the winter is Christianity, but they're a religion not a country and Christmas falls in the summer in the southern hemisphere where, if current trends continue, most Christians will probably live eventually anyway. Maybe countries just pick the warmest of the available days, or maybe rebellions and revolutions, in the days before air conditioning, tended to happen when the weather was hot. Either way, enjoy it while it lasts.