Legal Education and the Reproduction of Hierarchy

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Businesslady
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Legal Education and the Reproduction of Hierarchy

Postby Businesslady » Sat Jan 17, 2015 8:22 pm

I'm making a new thread for this. It should probably have its own subforum eventually. This PDF is a series of strongly-worded declarative statements. There is also a book with the same name.

As noted below, it predates 30 years of debt rising to insane levels. I am stoked on a more narrative approach from LST and similarly-minded organizations and individuals, but the entire process of asking questions about ownership of a future needs to get both more personalized and comprehensive. The institutions can't give you what you don't ask for.

I hope that people will think more about what they want and how to get it in general, but want to be sensitive to systemic pressures and acknowledge what it is to want certainty. 30 years later in debt calculations and post-ITE, crits are probably more necessary than ever, but a new kind of crit that knows how to do social science, and focuses attention on bringing attention to undiscussed mechanisms and forces without falling back on (legitimate but stigmatized) language like "patriarchy." Precision is underrated.

I think "don't go" has to be differentiated from "it's a scam." People "with the numbers" should be thinking collectively about how to demand more from institutions.

Image

http://duncankennedy.net/documents/Phot ... %20Ed..pdf

Here is Brian Tamanaha (Failing Law Schools) on it, and some discussion to make this thread appropriate for this subforum:
Image
http://papers.ssrn.com/sol3/papers.cfm? ... id=2256725

Tamanaha is that dude on the salary gesture (so much respect) but lots of parent universities have endowments like crazy. This clearly comes down to more than whatever Kennedy was making personally, but that issue is his prerogative to stress. It is important in that it's faculty who make decisions, ultimately, and it's faculty at whose feet this falls, and it's faculty who collectively fail to say "fuck you" to "the market." "The market" is half firms. The other half is people on this website, who do not make the job any easier.

That cuts beyond professors needing to take responsibility. I'm working on a book called Failing Law Websites and it's mostly about waiting threads.

(discussion about how I don't care if law professors make lots of money moved into the void below)
Last edited by Businesslady on Sun Jan 18, 2015 3:51 am, edited 5 times in total.

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sublime
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Re: Legal Education and the Reproduction of Hierarchy

Postby sublime » Sat Jan 17, 2015 8:32 pm

..

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Businesslady
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Re: Legal Education and the Reproduction of Hierarchy

Postby Businesslady » Sat Jan 17, 2015 8:33 pm

It's a book in the McLuhan sense. The medium is the message. I just go around this website accusing people of constructive virginity

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Re: Legal Education and the Reproduction of Hierarchy

Postby utahraptor » Sat Jan 17, 2015 9:11 pm

Maybe students should get on law reviews and push for more rigorous empirical work on socially useful things so that bullshit partisan framing in general has to take a back seat to data.


Doesn't really exist and wouldn't serve as a real impetus to make "legal scholarship" a real thing.

Maybe they need to explore whatever committees are available and use whatever discursive mechanisms are at their disposal to chip away at artificial scarcities and fragmented understandings of whatever the fuck it is they've purchased, and then use these tools of inquiry and discourse when they get out, too.

Not really any more capable of doing this than undergrads. Less likely to rock the boat due to the nature of the legal profession.

Also, they should figure out how to decouple secondary journals from the hierarchical stigma because (to get cultural Marxist) standardization is bullshit.

What?

Maybe institutions should be the ones calling judges, and not Bob Morse, and asking them what they want to be reading, instead of what vague ideas they have about "reputation."

Do you think judges read legal scholarship? Is that what this is saying?

Maybe UCI should give full rides to people with stats training and put them on an intensive clerkship track and have good LRAP and then charge whatever the fuck they feel like for people who want OCI.

How could you put someone on an "intensive clerkship track" from the outset? Scalia's right that you can't make a sow's ear out of a silk purse. UCI isn't going to be starting with any silk purses.

I actively dislike these threads.

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Re: Legal Education and the Reproduction of Hierarchy

Postby Businesslady » Sat Jan 17, 2015 9:16 pm

Okay. Never mind. Don't do any of those things. Post on this website instead

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Re: Legal Education and the Reproduction of Hierarchy

Postby utahraptor » Sat Jan 17, 2015 9:21 pm

Businesslady wrote:Okay. Never mind. Don't do any of those things. Post on this website instead

do you wanna talk about ghouls with me?

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Re: Legal Education and the Reproduction of Hierarchy

Postby Businesslady » Sat Jan 17, 2015 9:25 pm

No, I'm MAF you're shitting up this thread with conclusory law beta talk because you can't distinguish the present state of affairs from any other possible outcome that would require not being passive for like five seconds

e, for precision: The clerk comment is fine and substantive but split it into two parts or something at "and then," or else it doesn't have to be explicit

e2: Pwned while being dumb. Thank you for your input
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Re: Legal Education and the Reproduction of Hierarchy

Postby utahraptor » Sat Jan 17, 2015 9:33 pm

Businesslady wrote:No, I'm MAF you're shitting up this thread with conclusory law beta talk because you can't distinguish the present state of affairs from any other possible outcome that would require not being passive for like five seconds

e, for precision: The clerk comment is fine and substantive but split it into two parts or something at "and then," or else it doesn't have to be explicit

that's a pretty conclusory, beta way to address my concerns with your asinine post, businesslady

Directly: what do you think the role of LEGAL SCHOLARSHIP is, and what can/should it be?

Abstractly: why the fuck do we want those people to become lawyers and not something else?

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Re: Legal Education and the Reproduction of Hierarchy

Postby Businesslady » Sat Jan 17, 2015 9:35 pm

"Hello? Judge Whatever? I was wondering if I were to solicit articles on any particular subject of interest, what would it be? Oh, you don't read law review articles? All right, then. What's your opinion on the quality of these law school faculties, whose work you don't and wouldn't read, even if it were more catered to things that actively interested you?"

*compiles ranking*

This is definitely a good process for determining quality of academic institutions. I think peer review in other fields should take notes

e: I get "straw man" and switching from LR to UNSWR but FFS, try
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Re: Legal Education and the Reproduction of Hierarchy

Postby Businesslady » Sat Jan 17, 2015 9:40 pm

Judge Alex Kozinski wrote:I have been asked to speak on the relevance of legal scholarship to the judiciary. I note that whoever came up with the topic did not add the qualifier "if any," which shows a commendable degree of confidence. Then again, it may only be confidence in my ability to spin a yarn. Actually, I'm a big fan of legal scholarship, and I hope I can contribute some useful insights.

In thinking about the topic, I decided that it could be broken down into two parts. First, is legal scholarship relevant to the judiciary? Second, are there things that could be done to enhance the relevance of legal scholarship to the judiciary?

I don't want you sitting on the edge of your seat for the duration of the Lecture, so I won't keep you in suspense. The answer to both of these questions, in my view at least, is yes: Legal scholarship does matter, but it could matter more. Before I explain my conclusions, it's perhaps worth asking a preliminary question: Does - or should - anyone care about the relationship between judges and academics? Or should we take the attitude  [*296] that judges and academics operate in different realms, and if they have something to say to each other, that's fine, but if they don't, that's just as well?

My own answer is that judges do care, and academics should care as well. That judges care can be inferred from the fact that judges rely on academic pieces in their work: Law review articles and legal treatises are cited in opinions on a regular basis. And it's not just any opinions, either; the opinions most likely to rely on the works of academics are those written in the gray areas of the law where precedent doesn't provide a clear-cut answer. In other words, the work product of academics often finds its way into the most difficult cases, suggesting that the authors of those opinions believe that the views of academics matter.

But do academics care? And should they? A lot of academics do care. I know this from the scores of law review article reprints, treatises and other writings I receive every year - each with a little note attached that goes something like this: "Dear Judge Kozinski. I enclose what may look like a brick, but is in fact a reprint of my 645-page article entitled "Tweedle-dee v. Tweedle-dum: The Law of Twins and the Twin of Laws.' I hope you will find this of intense personal and professional interest and hope you will send me your reaction to the article once you've had occasion to read it. Sincerely, etc." Then, there is the inevitable P.S.: "No doubt you will note that one of your opinions plays a significant role in the development of footnote 845. If you write another case like that one, I hope you will not hesitate to cite me."

Well, the last part I made up - few academics are so bold to come right out and request a citation - but it's implicit. I try to oblige - especially if the article does, in fact, shed some light on a topic I'm pondering. In fact, it's not just the academics who do it. Years ago I gave standing orders to my clerks that, whenever possible, they should cite academic materials in my opinions, because that way the opinions would surely be read by the authors who would then cite me back.


http://notabug.com/kozinski/legalscholarship

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Re: Legal Education and the Reproduction of Hierarchy

Postby Businesslady » Sat Jan 17, 2015 9:49 pm

:oops: Here. I'm moving this part below the cut so the shitshow can stay out of the OP

---

Like, I doubt there's much wrong with talented faculty getting compensation commensurate with whatever they do for keeping well-paid practice theoretically and methodologically rigorous. I do find it upsetting that debt isn't a higher priority, and the logic probably falls more along these lines.

Being real about market failures - which in this case may include failure to properly compensate for teaching that has beneficial multiplier effects for society, and may require safeguards against sloppy interpretation of data and concepts to the point of being counterproductive from either "direction" - should transcend "politics" as we reductively see it, electorally. "Transparency" is only as good as what you want to see through, and who you want to see through it - it doesn't help to have people pissing in the drinking water with "SCAM" without thinking.

Edited for pissing in the drinking water
Last edited by Businesslady on Sun Jan 18, 2015 1:11 am, edited 2 times in total.

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Re: Legal Education and the Reproduction of Hierarchy

Postby A. Nony Mouse » Sat Jan 17, 2015 9:51 pm

I'm kind of with smaug on this. I find the focus on legal scholarship odd, given how absolutely legal scholarship is decoupled from 1) what students in law school learn and 2) what lawyers do in practice - at least, lawyers who are not federal court of appeals judges. Kozinski is part of a very very small group of people, even among judges. The bulk of judges are not COA judges, and apply the law in a more mechanical fashion. In fact, legal opinions cite legal scholarship as a last resort, when there isn't any established law to draw upon.

It's true that the elite COA judges/SCOTUS who can care about this kind of stuff are the most "important" legal folks around, but they're a tiny percentage of lawyers. Any reform to legal education focusing on this group of people is irrelevant to the vast majority of students attending law school, even in the T14.

And academic law school (used in the OP I think) is a misnomer. All law schools are professional schools, with completely different goals from academic graduate programs (I've been in both). Law profs are academics. It's a pretty significant gulf. Maybe it doesn't have to be/shouldn't be, but I don't think the OP recognizes how far apart professional and academic programs are to start with.

(Clerking isn't a career path and doesn't have any particular potential to change/influence anything.)

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Re: Legal Education and the Reproduction of Hierarchy

Postby utahraptor » Sat Jan 17, 2015 9:53 pm

That answers the direct question, but not the abstract one.

Sure, Kozinski and some other judges might cite LEGAL SCHOLARSHIP from time to time, but that doesn't really answer (1) who should produce what we call "LEGAL SCHOLARSHIP" (2) how the production of LEGAL SCHOLARSHIP impacts current law students (3) whether it is rational for current law students to give a shit about LEGAL SCHOLARSHIP, even if judges care about (which I still think is super fucking dubious) and (4) whether it would be fruitful for law students, in some imagined world totally divorced from the realities of legal education today to give a shit about LEGAL SCHOLARSHIP.

Put more concretely:

LEGAL SCHOLARS are often not lawyers.

Current law students interact with LEGAL SCHOLARS, but they, at best, select some pieces of LEGAL SCHOLARSHIP for publication and communicate with LEGAL SCHOLARS. "Communicate with" means "beg for final versions, accurate footnotes, and clarification of unclear points." They do not help create LEGAL SCHOLARSHIP.

It is irrational for current law students to care about LEGAL SCHOLARSHIP. Most lawyers will not be LEGAL SCHOLARS, and, even if there is a piece of LEGAL SCHOLARSHIP that is somehow relevant to their lives as lawyers, they will either be citing it for purely pragmatic reasons (because it will help them achieve something for a client) or because they expect someone else to cite it for purely pragmatic reasons.

Even in an imagined world where law students help professors envision what the law should be and create powerful, persuasive pieces of LEGAL SCHOLARSHIP the vast majority would be utterly powerless to do anything to enact it. That powerlessness isn't imagined. Law students are not judges. Law students are not legislatures.

If you want to write SCHOLARLY TREATS for the rest of the world, you're going to need more than a JD. Most law profs. are PhDs. If you want to help those SCHOLARLY TREATS do something, you're going to need to be more than a lawyer.

But please, tell us more about these future ATLASES OF LEGAL SCHOLARSHIP and how they will shape the world.
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Re: Legal Education and the Reproduction of Hierarchy

Postby Businesslady » Sat Jan 17, 2015 9:53 pm

Getting JD/PhDs sounds tight. Do that with your 4.0/180. Is that a synthesis you'd be OK with?

e: It's almost like I was actively suggesting people develop / use the types of skills that JD/PhDs have that produce useful work in civic / law-related contexts!
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Re: Legal Education and the Reproduction of Hierarchy

Postby A. Nony Mouse » Sat Jan 17, 2015 9:54 pm

God, don't get a PhD, unless you want to be even more disconnected from anything to do with practicing lawyers (which are what law schools mostly produce).

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Re: Legal Education and the Reproduction of Hierarchy

Postby Businesslady » Sat Jan 17, 2015 9:55 pm

Get lots of PhDs. Get like a million of them and then write all the laws

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Re: Legal Education and the Reproduction of Hierarchy

Postby utahraptor » Sat Jan 17, 2015 9:56 pm

Businesslady wrote:Getting JD/PhDs sounds tight. Do that with your 4.0/180. Is that a synthesis you'd be OK with?

I'm not smart enough to know what you need to get a JD/PhD, you should maybe talk to the moderator who knows about such things.

The bigger problem is that even if you get your JD/PhD, you still need to be great at law school and probably be a SCOTUS clerk if you want to be a LEGAL SCHOLAR.

That said, yeah, of course being a legal academic would be sweet. You're at the top of the scam pyramid. Congrats.

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Re: Legal Education and the Reproduction of Hierarchy

Postby utahraptor » Sat Jan 17, 2015 9:57 pm

Businesslady wrote:skills that JD/PhDs have


yeah all of those SKILLS like

writing legal scholarship and, uh

writing LEGAL SCHOLARSHIP

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Re: Legal Education and the Reproduction of Hierarchy

Postby Businesslady » Sat Jan 17, 2015 10:13 pm

"Scam pyramid." Good synthesis. I don't see why we don't pass a lot of this exact kind of discourse off as our country's academic legal scholarship, and then treat the whole thing as a monolith to dismiss. I'd hate for anyone to consider a future state where scholarly inquiry into matters of law has any bearing on jurisprudence! I'm glad they don't teach logic or moving beyond sloppy argumentation for the satisfaction of winning in law schools at the expense of what looks like rigor in other empirically-focused disciplines. That would be terrible for turning "research" into conclusory pissing matches, making it the basis of institutional prestige arbitrage for fun and profit, and giving courts no reason to ever cite them in the first place.

I'd much rather sit here and debase something, on the basis of memes derived from someone's abuse of the structure this permits, than do any actual analysis to get to a constructive point - because I like my views! On a related note, I have no idea how these structures and modes of thinking are reproduced in the outside world in ways that affect people's lives at scale.

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Re: Legal Education and the Reproduction of Hierarchy

Postby utahraptor » Sat Jan 17, 2015 10:19 pm

You're not really engaging me, BL. That's cool, I guess, but there's some irony in complaining about sloppy argumentation and a lack of logic when all you do is post conclusory stuff about how other people suffer from those problems.

This thread is bad. These ideas are bad. Do you know what a good idea would be? Get rid of law schools. Entirely. They don't teach anything. As discussed in this thread, legal academia has no real impact on the lives of most lawyers. So, get rid of the scam.

You can have your shiny, happy academics, and I can be happy that future lawyers aren't paying the way for shiny, happy academics.

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Re: Legal Education and the Reproduction of Hierarchy

Postby A. Nony Mouse » Sat Jan 17, 2015 10:25 pm

One of the common criticisms of legal scholarship is in fact that law doesn't actually have any methodologies of its own, it just cribs them from other fields, but that most scholars don't have formal training in those fields, and so legal scholarship doesn't have any of the RIGOR found in other traditional academic fields.

(It doesn't help that students are choosing what to publish. On the one hand, I think students can identify crap as well as most people. On the other, students don't have the kind of academic background presumed/expected for reviewers to have in other academic fields, so if you're looking for RIGOR, I'm not sure students can provide it, especially given the short turnaround in law review publishing. And law schools don't teach students anything about doing academic research. Nothing at all. Only how to research cases/statutes/regulations, which is extremely different. There is no systematic academic training, because law school is a trade school.)

I get the concern about just shooting stuff down and not offering alternate conclusions, but the discussion (e.g. in the OP) does seem extremely disconnected from the actual experience of going through law school and becoming a lawyer.

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Re: Legal Education and the Reproduction of Hierarchy

Postby Businesslady » Sun Jan 18, 2015 1:03 am

utahraptor wrote:You're not really engaging me, BL. That's cool, I guess, but there's some irony in complaining about sloppy argumentation and a lack of logic when all you do is post conclusory stuff about how other people suffer from those problems.

This thread is bad. These ideas are bad. Do you know what a good idea would be? Get rid of law schools. Entirely. They don't teach anything. As discussed in this thread, legal academia has no real impact on the lives of most lawyers. So, get rid of the scam.

You can have your shiny, happy academics, and I can be happy that future lawyers aren't paying the way for shiny, happy academics.


This sounds extremely reasonable and I'll clean up the posts. It still seems like something like method in published work on laws should be more of a thing. It is uncomfortable to think that doctorate level degrees in jurisprudence are so, like, not. "These are trade schools" makes enough sense, obviously, but it just blows my fucking mind to think of how primitive the mechanics of the academic enterprise are, considering the stakes. Decoupling institutional regard from peer review (if research is the measure of the value of the major cost center) makes it feel like the proper language is "Legal Education and the Reproduction of Epistemological Anarchy."

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Re: Legal Education and the Reproduction of Hierarchy

Postby Paul Campos » Sun Jan 18, 2015 9:10 am

Kennedy's essay (which is pretty great despite its severe elitist myopia) was published in 1982.

Some numbers:

Harvard Law School tuition in 1982: $6900 ($16,927 in 2014$)

HLS tuition in 2014: $54,850

Harvard University endowment in 1982: $1.7 billion ($4.1 billion in 2014$)

Harvard endowment in 2014: $36 billion

A couple of comments: Law schools are for the most part not really academic institutions, for among other reasons those Nony cites. This is especially true at the 95% of law schools below the elite neighborhood.

They're not really vocational training schools either. (Doing vocational training in the classrooms of a traditional research university makes about as much sense as putting a post card in a safe before mailing it.) They are social sorting and signaling mechanisms, that extract fantastic quantities of economic rent in the process of sorting and signaling.

P.S. I enjoy your threads

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Re: Legal Education and the Reproduction of Hierarchy

Postby A. Nony Mouse » Sun Jan 18, 2015 10:15 am

Yes, Prof. Campos is right - when I call law school a trade school it has to be with the caveat that it doesn't actually prepare you (much) for the trade in question.

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Re: Legal Education and the Reproduction of Hierarchy

Postby PeanutsNJam » Sun Jan 18, 2015 11:31 am

To what extent is the material taught in law schools actually useless?

Basically, can an equally competent individual fare as well as a fresh non-T6 LS grad as a first year associate in biglaw?

Or are we saying "law school is useless for lawyers" in the same vein as "diff-eq is useless for engineers". Although we have programs that can do diff-eq for us, I still believe an intimate understanding of the subject matter is advisable.




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