Cui bono?

Cui Bono?

Last month, Jessica Slavin’s miniblog Things Law School Doesn’t Teach (12/15/08) caught my eye. Professor Slavin’s blog linked to a public defenders’ blog in Connecticut which contained a list of “10 things I didn’t learn in law school,” a list seemingly assembled without a lot of thought, apparently just a bit of lighthearted fun.

The comments to the blog, on the other hand, were hardly lighthearted, especially the comments of Professor Papke and John Kindley.

Professor Papke wrote:

. . . I thought the list was cynical to a fault. Too many lawyers have a sad bitterness and mean anti-intellectualism about them. Maybe living in debt and working in the context of hierarchy and bureaucracy produces those attitudes. I wish somehow lawyers could remember law school as a demanding but enriching academic experience.

and

. . . We don’t want law school to be lawyer-training school. When we cave in to demands of that sort from the ABA and assorted study commission, we actually invite alienation among law students and lawyers. Legal education should appreciate the depth of the legal discourse and explore its rich complexities.. It should operate on a graduate-school level and graduate people truly learned in the law.

John Kindley countered:

The biggest flaw in [Professor Papke’s] philosophy is that law school is mandatory, if you want to practice law. The government of most all states will forcibly prevent you from doing it unless you’ve gone through those three years. It’s not too much to ask, therefore, that there be a close relationship between what is taught in those three years and preparing students for the actual practice of law. People can think deep thoughts about the law, and pay for the privilege, if they choose to do so, maybe as an elective . . . But I don’t feel like I or anyone else should be forced to pay for these high-falutin intellectual pursuits in order to practice a profession that for better or worse does not depend on such pursuits.

I was a bit surprised that Mr. Kindley’s comment attracted no responses since it was pregnant with so many issues about legal education. Should a law degree be required for the practice of law? All kinds of legal practice, or just some? Should three years of law school or the completion of 90 credits be required as a necessary condition for bar admission? Why not one or two years, coupled with a rigorous bar exam? Why not make law available as an undergraduate subject of study, as it is in many countries? Why require a baccalaureate necessitating four or more years of undergraduate study for admission to law school? Why not three years of such study, or two or none, so long as an applicant passes a validated and reliable qualifying entrance exam and otherwise satisfies admission officials that s/he is reasonably equipped for law studies? The history of the American legal profession has been in large measure a history of erecting ever higher barriers to entry into the profession and increasing the cost of entry has long been the principal tool of exclusion. What is the justification for the costly barriers to admission to the legal marketplace? These barriers have developed over a period of many years and have been with us now for so long that we tend to take them as ‘givens,’ but quaere whether some of them should be reexamined and perhaps modified or even torn down.

Mr. Kindley argues, if I understand him correctly, that those who wish to “think deep thoughts about the law, and pay for the privilege” should of course be able to do so, but what is the justification for bundling courses aimed at probing what Professor Papke calls “the depth of the legal discourse and . . . its rich complexities” with courses that Mr. Kindley identifies as “preparing students for the actual practice of law”? He takes dead aim at Professor Papke’s assertion that “[w]e don’t want law school to be lawyer-training school.” Quaere why not? With three years’ of tuition costs and average educational debt approaching $100,000 on top of opportunity costs, what is the justification for a curriculum that isn’t aimed at “preparing students for the actual practice of law”?

I should acknowledge that I think that Marquette has done an excellent job in creating a curriculum that offers great opportunities, clinical and otherwise, to prepare for ‘the actual practice of law’ as well as opportunities to probe “the depth of the legal discourse and . . . its rich complexities.” This is not to suggest however that our society would not benefit from a comprehensive and radical rethinking of the legal education industry. After all, before President Bush and the last Congress provided a bailout to the financial services industry in 2008, they had to bail out (in a manner of speaking) college and professional school graduates from what was for many of them a crushing burden of educational debt. (College Cost Reduction and Access Act of 2007.) In terms of legal education, would it not make sense to take a long hard look at methods of reducing costs? The tuition at MULS has increased by a factor of 26.95 since I matriculated in 1967. The CPI over the same period increased by a factor of 6.36. Thus, tuition increases more than quadrupled increases in the CPI. Is the educational experience today richer than it was in 1967? Without question. To acknowledge this truth, however, doesn’t address the issue of whether students who would prefer a less rich and less costly but nonetheless adequate and satisfactory educational experience ought to have opportunities to pursue it.

Lastly, Mr. Kindley argues, pace Professor Papke, that the legal profession “for better or worse does not depend on (high-falutin intellectual) pursuits.” Professor Papke may (or may not) consider Mr. Kindley’s comments to demonstrate the “sad bitterness and mean anti-intellectualism” to which Professor Papke referred in his first comment to Professor Slavin’s blog. For my part, the pointed exchange between the two gentlemen reminded me of the following:

Since . . . it has been my intention to write something of use to the understanding reader it has seemed wiser to me to follow the real truth of the matter rather than what we imagine it to be. Imagination has created many principalities and republics that have never been seen or known to have any real existence; for how we live is so far different from how we ought to live that he who studies what ought to be done rather what is done will learn the way to his downfall rather than to his preservation.
Niccolo Machiavelli, THE PRINCE, ch. XV.

and

[L]aw was superb as a code. And the more perfect and logical a code was, the more magnificent it was. But this was at the cost of increased artificiality, rendering it less capable of existing in reality. Hence the opportunity to study and reflect on law offered the greatest satisfaction while the requirement to implement it was the saddest or most painful fate that could befall one. The practice of law led either to cynicism or madness. We could see examples of the former all around us and, as for the latter, suffice it to recall Kafka, who, though few realized it, was a Prague lawyers.
Ivan Klima, JUDGE ON TRIAL A. G. Brain trans., 1993