Academic

Response to David Crump

By University of Houston Law Center

Dear David, 

Of course the DOJ had clients.  We called them “the people.”

I suppose my quibble is about what I view to be a false dichotomy between intellectual endeavors and practice endeavors.  For example, in my line of work, fact development is not done in a vacuum.  Rather, law and facts are developed in a congruous fashion in light of the policies behind the law and the consequences of alternative outcomes.  I thought that this is what we were teaching in law school.  Teaching proper fact development is crucial to that process.  And of course one should not ignore the practical realities, such as: that clients are troublesome; the difficulty of being a repeat player before an administrative agency when you have a demanding client; dealing with difficult counsel; and administrative and judicial processes, to name a few (i.e., the impediments to and structures for good policy).  And you are right that transactional planning and dealing with clients are important skills to be communicated, and I do take them seriously (you are welcome to visit my antitrust class to confirm my seriousness).  But again, to me these are not either/or propositions wherein we teach x at the expense of y. 

But to the extent that Stracher is correct and that we in the academy are somehow behaving badly, perhaps the blame should not lie within just academe.  Maybe the blame lies with the Bar.  The articling system could be viewed as a barrier to entry.  So, too, can the bar.  It serves no practical purpose, except to teach one how to commit malpractice (e.g., I can’t consult the statute in a UCC question, so I’ll tell you what I think the law is.)  So we perhaps teach the law and the intellectual issues to a greater degree because the Bar tells us to do so (although I have the luxury of not teaching a single bar course).  Erecting the entry barrier and then shoving students through it serves as a powerful signal as to what the Bar views as important.  Thus, if the Bar values things such as an understanding of economics and client relations, it has a lousy way of showing it.

Despite Bar protestations to the contrary, another issue is that realms of law are highly specialized.  It would be impossible for a law school to provide on the job training that would prepare students for all possible realms of practice.  Thus, we are back bellying up to the Bar, who are not inclined to supervise every law student we have. 

Also, take note of law firm hiring practices.  The top law firms boast of hiring the top 10%, regardless of course selection.  They value law review over clinics and clerkships over other experiences.  The people who pay the overhead for this place, the students, read that signal loud and clear, and yet we are to blame for the output.  I believe ours is a derived demand, a function of the signals that the Bar sends to our students. 

In short (a good closing after a long soliloquy), I reject this notion that there is a distinction between the intellect and the practical.  And to the extent that lawyers are frustrated with what we are doing with our students given limited resources, they need to look no further than to themselves for the answer. 

Best, Darren

Full post as published by University of Houston Law Center Faculty Blog on February 08, 2007 (boomark / email).