There is Hope for Us All

Reading A Scholar's Book Adds Layers of Complexity to the Schindler Legend together with Superman is bad role model reinforces something I have long believed about law graduates, and indeed suggests it is a more general human tendency.

Law students typically graduate with substantial debt. The path of least resistance is work in firms, which pays well, or work in large firms, which pays very well. It is very hard to land any sort of public interest work without experience, and the pay is relatively low, especially for those with debt and especially for those with debt and families. (A compromise is government work, which pays ok, and is in theory work for the commonweal.)

So I think a significant number of people [no, not everyone!] just surrender when they work for the firm. They figure they can't be a saint (or Mother Theresa, or Superman, or Ralph Nader before he went nuts), either because the sacrifices are too great — and anyway no opportunity seems available. So they give up and go corporate, and in time stop looking for even the chances to do good in small ways or part time. (It doesn't help that junior lawyers in firms are encouraged to compete for promotion to partner, and some firms do not smile on non revenue enhancing activities, although the enlightened ones do.)

The truth, though, is that Superman is a myth (and so, to some extent, is Mother Theresa, but that's another story). There was a real Schindler. It seems that he wasn't such a great guy in many ways: a drinker, an adulterer, maybe a thief. But he rose to an occasion.

There is hope for us all.

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10 Responses to There is Hope for Us All

  1. Bricklayer says:

    The core of the matter is not debt. It is the fact that freshly minted JD’s lack confidence. Rightly so, given that professional admission (the bar) does not require an apprenticeship. UM Law doesn’t even require clinical work for graduation!

    Understandably, many new grads simply aren’t willing to take someone else’s life in their hands just yet. Let someone with more experience handle the innocent criminal defendant, the cancer patient wrongly denied an insurance claim, or the mother of three being wrongly evicted. Big Law corporate clients offer matters with moral irrelevance. If you loose, well then rich corporation A takes a few more bucks from rich corporation B, your firm gets paid regardless, and young JD sleeps none the worser. JD takes the client for a round of golf and all is forgotten.

    Secondly, firms offer supervision and mentorship on PRACTICAL issues of law practice. Many (most) public interest work does not. Given that the law schools fail to teach PRACTICAL legal skills, what use would it be to pursue public interest work right away? Bad move for both the young lawyer and the organization that would have her. And young lawyers are scared to death of malpractice, so having firm collegues looking over your shoulder is a must.

    Even if we give your debt factor equal weight to those above, all of them are really under the academy’s control, not the students’. If law schools

    1. Took steps to ensure that newly minted JDs are confident in their practical abilities and
    2. offered a JD degree for less than $100,000

    then maybe you’d get your desired result.

    As respect for the legal community has declined in recent years, its disturbing when an agent of the law school points a finger at the students. One of your collegues once told a class that as a young law student he too recognized many problems with legal academia and the bar. But he said that once he passed the bar, he quickly became a passenger on the last helicopter leaving the roof of the US embassy in Saigon, pulling up the ladder behind him. Not his problem anymore. Some of the students chuckled at this, most did not.

    It is far easier for the faculty of a law school to change their ways to accomodate society’s expectations of young lawyers that it is for young lawyers to change themselves. Unlike the young lawyers, the deans and profs wouldn’t have to be supermen. They would just have to wake up. Stop poo-pooing practicing adjuncts and start making clinical work required for graduation. Lobby the bar for an apprenticeship system. Embrace non-traditional law schools that offer affordable access to a legal education.

    Alas, it seems that tenure induces a slumber from which one-time reformers never awaken. Change is Kryptonite to the legal academy.

  2. Michael says:

    (1) It will be very interesting to see what you think of the student’s demand for “practical” skills in ten years. Most lawyers I think look back on it and cringe. There’s a lifetime to learn how to fill out forms, how to do a deposition, how to research a trademark, all the little things that distinguish various forms of our craft from each other. Worse, there as many sets of these skills as there are specialities — most lawyers will not be civil litigators, so why should we require they know how to do depositions? or plea bargains? just as most won’t be tax lawyers or do criminal work, etc etc — but the unique skills that we can teach are about modes of thought (“thinking like a lawyer”), research skills (reading statutes, regulations, cases and treaties), and most importantly exposure to a wide range of types of law (spotting unexpected related issues that can save a client’s bacon). If you happened to apprentice to the right lawyer you might get these, but I doubt that would be the case ordinarily.

    Which is why I think it’s generally a mistake to overspecialize in law school. [Incidentally, I can't imagine where you got the idea that public interest work doesn't involve practical lawyering. It certainly does. It's true, though, that most underfunded groups prefer to have their lawyers more fully trained than a newly minted JD, and try to hire folks with a few years experience. No law school that provides a quality education in legal thinking, rather than a three-year bar review would ever claim that it either fully prepares you for the bar or that you graduate fully ready to take on solo representations of clients. It really does take a few years more of learning by doing. You might be able to shoehorn a bit more of that into the curriculum, but only at the expense of other things that are valuable -- exposure to a breadth of types of law, of legal styles.]

    (2) As for the cost issue, there are many less expensive law schools — an average of one per state, offering much lower tuition to in-state residents. You could perhaps have chosen the one in your state of residence. In a private law school without a large endowment, such as this one, if you charge less in the end you must (modulo the occasional clever piece of cost cutting) deliver less. Would you choose to have fewer books in the library? A smaller faculty, meaning larger classes and less variety of them? Or a faculty with such poor salaries that only losers would take the job when they had no other choices? Adjuncts are often great, and can they cost much less being the functional equal of donors, but they don’t do research…and don’t much like to teach during the day, either. Plus they’re at their best usually teaching what they do — and that’s not, by and large, the broad survey courses on this list, but something much more specialized. An adjunct-only trade school would be a different sort of place, and one less open to

    (As for your hostility to various faculty members, or the idea of a faculty, I don’t know what to say not knowing the details. But it seems consistent enough that one might consider looking to the common factor. That factor might be tenure. Or it might be the observer. Your descriptions don’t sound like the faculty I know, and they also reveal a fairly narrow vision of what it is professors do — perhaps because so much of it isn’t easily visible to students unless you follow the faculty’s research, writing, and, yes, activism. To take the example closest to home, I’ve been active for years in what I think of as a public service project, one I hardly ever talk about here. You can see it in action at ICANNWatch.org.)

    But important and interesting as these debates may be, I also think they have almost nothing to do with the subject of my post…

  3. Bricklayer says:

    The intended subject of your post was the application of the Superman study/theory to explain why you aren’t seeing young lawyers doing more good. You mentioned debt as a practical matter, so it inescapably forked your subject down a second path.

    My post argued that the reason you aren’t seeing young lawyers do good has nothing to do with unreachable role models, unwillingness to sacrifice, nor debt. I offered an alternative explanation for what you observe. I was on point. So much so, that you spent much of your answer forced to defend the current method of legal instruction. But you never dispute that my analysis of what motivates the career decisions of young lawyers is more accurate than Superman and debt.

    I have a feeling you did not think through all that you wrote, and might want to consider clarifying a few points, particularly your definition of a “loser”.

    Btw. This Superman/Schindler theory is nothing new, in fact its already been published. Every Sunday at thousands of churches in every corner of the globe a pastor substitutes Jesus for Superman, and reminds his flock that even they who are sinners (Schindlers) can, in both small and big ways, do good and fight evil. I’m sure other religions also have similar lessons with different characters.

  4. Michael says:

    you never dispute that my analysis of what motivates the career decisions of young lawyers is more accurate than Superman and debt

    Ultimately, that’s an empirical question. My impression, based on my life experience, including that of being a young lawyer in a firm and teaching students for more than a decade, is as I stated. Your impression, based on some fraction of law school, appears to be different. The students I went to law school with did not lack confidence. But both the place and the times are different, further muddying the waters. I can’t see what there is to discuss as neither of us has more than subjective impressions to offer.

    I have a feeling you did not think through all that you wrote, and might want to consider clarifying a few points, particularly your definition of a “loser”.

    No, I think I said what I meant: if in a private school with a very limited endowment you were to, say, cut tuition in half, you’d more or less have to cut salaries in half for faculty, staff and administration as almost all of the other costs are fixed costs. And since staff salaries are already about as low as the market will bear, and administrators rarely cut their own pay, it’s going to come out of the faculty.

    As things stand, I get paid in nominal dollars about what I, as a fifth-year associate, made when I left my firm 13 years ago. It’s less in real inflation-adjusted dollars, although perhaps the same in actual buying power, as I lived in a more expensive city. One could ask if that’s the right comparison: Starting first-year associates with no experience at all at that same firm now make more than I do today. Had I stayed and made partner, which was not inevitable, I would be making several times what I make now. Even the consolation prize of ‘counsel’ is very substantially better paid than being a professor.

    But I think I’m a winner not a loser: I get paid well and I have a lot of freedom. Teaching and committees takes about half my time, and the rest I can spend on research, being in effect my own client. I like it so much that in the ordinary week I spend more hours working now than I did when I was an associate in a big firm. I would imagine that most of my colleagues feel the same way.

    But suppose you cut our salaries in half. That would change the deal in a very material fashion. Now I wouldn’t have the freedom to send my kids to private school in a town where the public schools are mostly lousy, and where thanks to Jeb Bush the magnet schools are shrinking and as a result my kid didn’t win a place in the entry lottery. I’d be indulging my intellectual freedom at the expense of their futures. I wouldn’t take that deal. Lots of people I know who would be very happy to teach now, and who make the entry-level market for teaching very competitive would instead choose to do something else. Sure, you’d still get some very highly qualified selfless (or single) people who are so committed to the enterprise they’d do it anyway. But overall the market for would-be professors would change from the current buyer’s market to one where the average candidate would no longer be one with top grades, fancy clerkships, advanced degrees, experience, and publications. Those people have lots of choices and many (not all, but many) would choose to do something else.

  5. Bricklayer says:

    Admittedly sliding away from the trunk of the discussion, I’d like to consolidate some of the points we’ve both made regarding professor salaries, adjuncts, and practical training.

    You seem to assume that a faculty laden with publishers is somehow a good thing for me. Too many practicing adjuncts would not be a good thing for me. I think we can agree that this view predominates law school administrations nationwide.

    I have several problems with this kind of thinking. First of all, students and employers are split on this issue. Some feel there is some benefit to studying at the feet of “the masters.” They feel its important that their professors publish and are identified with their school. But others, like me, feel that the perceived benefits are illusory and tied in to the student’s ego and desire for prestige. I could care less if and what my professors publish; I am more concerned if whether or not the lectures are a productive use of my time, i.e. can she teach?

    To me, the problem is that the legal education market does not offer students, or would-be teachers, a choice. There are many students who would prefer practicing adjuncts. There are many practicing lawyers who’d like a chance to teach (and maybe recruit…). But the way law schools are currently staffed, these two groups find their needs/desires are not met.

    Now, this may vary from school to school. An ivy-league law school with a long history of scholarly publication and innovation ought to keep that tradition going and cater to those students, lawyers, and professors who like that sort of place. Despite my personal preference for something else (I turned down top 10 and 20 schools for UM), I recognize that the legal community needs those places.

    But when we talk about a place like UM, is it really true that students want and need the same things that yalies do? As I understand it, only 1 UM grad has ever clerked for the Supreme Court. I think that speaks volumes about the type of students that UM attracts. It does not imply anything negative, rather that UM grads have different goals based upon their own backgrounds and what they want out of a legal career. That said, efforts to have UM emulate a Harvard or Yale actually does a disservice to the UM students, as its not what they want or need. UM grads cannot rest on the name of the alma matter like a yalie can. They need to prove to employers that they are smart, and that they can hit the ground running. UM can’t help with the former, but it should feel obligated to help with the latter.

    Why do you think Fajer won the teaching award last year? Most students who had him know little or nothing about his outside publishing or interest work. They like him because they felt they learned something. Why do students love Coker, Graham and Wetherington? Because the students feel like they learned something, not because of what they’ve published.

    The cold hard truth is that UM students don’t see the legal profession the same way that other students at other schools might. This is neither a bad or good thing. It is what it is.

    The second problem I have with that thinking is that it casts each approach as black and white, at different extremes. Many publishing professors have a vast background of practical experience to integrate into their lectures. Many practicing adjucts are not too shabby when it comes to explaining and exploring the theoretical bases for legal rules and decisions. So to say that students are “robbed” of something if a faculty leans too far in either the theoretical or practical direction is simply not realistic. It is not a question of absolutes, but rather a matter of degree.

    I think its a little silly to think that the leaning of a lawschool one attends determines the long term path of one’s legal career. If a person is very practical, hands-on, and people orientated, they’re not going to end up doing theoretical work regardless of where they go to school. The same is true for the theoretically inclined who just can’t seem to get his people-skills together.

    In an effort to tie all of this back to our original discussion, let me say this: I think you are seeing the world through your own preference for theory, and may not be fully considering what it is that the majority of law students at a given school want and need.

    I think UM students would prefer more practicing adjucts over figureheads like Posner or Tribe, I really do. There are other student bodies that would agree, others that would strongly disagree. Who is to say which is better? You? or the students?

    I think UM students would like to see cost cutting if it meant lower tuition. You mentioned books in the library, and I think the students almost unanimously agree that anything in Westlaw or Lexis is completely unnecessary in print. I know many students have voiced environmental concerns over the vast numbers of the reporters that go unused. They would prefer those stacks made way for more study areas. There are some publications that must be kept, but how can 3 copies of the Federal reporter be justified when every student has unlimited Westlaw access, and those cases can be googled as well? Also, class size relevancy is a myth to most UM students. Nobody gets lost unless they want to. I’ve never ever seen anyone feel like they couldn’t get a question answered in a 120+ seat classroom either during class or after. As far as I’m concerned, when the prof opens the floor for comments and questions, the more the merrier.

    That said, now that you have a clearer idea of what my beliefs are, you can understand my frustration when I heard your theory as to why young JD’s don’t “do more good”. Not so much the theory, but its source. Nothing personal, I just see you as an agent of the machine.

    Sure, I’d like to see my graduating class serve the public and bolster the public’s positive views of the legal profession. But if we don’t, I think you and I have fundamentally different explanations as to why that will be. I don’t think its because we will be failing our own moral sensibilities and aspirations. Rather it will be because our law school didn’t meet our needs, because it didn’t ask some very fundamental questions about what makes its student body different from others.

  6. Michael says:

    There is much more variety than you admit in the legal education market. There are a large number of law schools that serve the market you describe. Including some not all that far away from UM. It’s not too late to transfer if you think the trade-school mentality would better serve your needs.

    Yet, I suspect you won’t. There is a reason why law schools whose faculties are engaged in high-quality research provide degrees with higher prestige, or market value if you insist. Part of it is that they tend to attract better students, and the quality of your education is in some not insignificant fraction a function of who your classmates are, both because it defines the level at which we can teach and because it determines the level at which you can talk things over together. But part of it also that they deliver a better, more valuable, education. That may or may not be visible on the first day of your first job, but it is very visible in the longer run.

    UM makes no secret of what it is, or what it aspires to be: you came to the nuisance as it were. We on the faculty think we’re on the right path, and three years of BarBri and NITA is not the path we want, or that we think makes the best lawyers. Learning to think in a new way is perhaps not fun for everyone — although I enjoyed it — but it makes one, I believe, a much better lawyer who is much better equipped to serve clients who have anything but the most routine problems.

    As for who is to say which is better, that’s easy: Me. Or rather, Me and the rest of the faculty. That is part of what we claim to be expert in. And indeed, it’s our ability to in fact be expert in that which more than anything allows us to continue to attract better and better students, and to enhance the school’s reputation.

    A university serves many constituencies. Students are the main one, but not the only one. Until Lexis and Westaw are free, we need the reporters for the people who don’t have accounts on those expensive databases. (We also need them in case the Wexlaw duopolists ever price themselves so high we have to depend on books again. Just having them in reserve makes that unlikely. But suppose we didn’t have them…)

    Incidentally, I think the term “theory” is not real helpful here. I did not use the word above to refer to types of teaching, but rather talked about “practical” skills in scare quotes because I don’t in fact think they tend to be that practical for any but the students who end up doing precisely whatever sort of work is being demonstrated. Instead, I talked about modes of thinking–and indeed, what could be more practical?

    The same might be said of my academic work. Do I do “theory”? Very little of my writing is actually theoretical as I understand the word — one, maybe two, articles out of I forget how many, although it’s true that my most prestigious publication was also my most theoretical piece. But most of my work has been very practical stuff indeed, well open to the criticism of being too much of the moment. When students say “theory” they tend to mean “anything that isn’t hands-on stuff I can use when I start work”. But we are not training you just for the first week or the first year. We’re trying to train you for a career. That means talking about how things fit together, how things change over time, not just how to draft a complaint or file a bankruptcy petition. Those have a place in legal education but mostly as stand-ins for the general class of thing to which they belong. Not only is there no way we could have you memorize all the tasks you might be called upon to do, it would be futile if we did as the laws and rules are in constant flux. Far, far better to equip you with tools that make it easier for you to make your own way. That gets called “theory” but it is in fact utterly practical.

    I used to teach Jurisprudence — what could be more theoretical? — and I used to tell my class, in utter sincerity, that it was the most practical course I taught as we would be learning how to make arguments. Is that “theory”? Or is that something else? Or, best yet, is it both at the same time.

    Final point: Law students are adults when they arrive, and they are adults when they leave. The issue is not “public perception of lawyers” — a subject on which I have said little, and have little to say — but rather individual choices people make to act in ways small as well as large when the opportunity presents itself; as Saul Alinsky said, “you start where you are”. To the extent you may have been discussing choices rather then PR, it is, I think, a moral error to suggest that anyone else, even the hateful faculty so out of touch with your needs, could be responsible for your or any other student, much less graduate’s, choices to devote a small fraction of their time to this.

  7. thomas says:

    sort of an interesting debate.

    but no-one has mentioned the fact that most law school students (especially at UM Law) are NOT INTERESTED in public sector work, being Superman or Mother Teresa, or even other people for that matter.

    it is true that you see a large percentage of students settling down at corporate law firms, and maybe a lot of them feel the weight of debt as a certain impetus.

    but the vast majority, i am sorry to say, are more or less different incarnations of the girl i met the first week at UM Law…

    i asked her, “so, why did you decide to go to law school?”

    she answered, “well, it was either law school or med school….blah blah blah…my parents…”

    i said “wow, it’s rare to meet someone with such different interests….i mean, biology and the law…”

    i got a well-deserved fishy-look in response….

    so let’s not forget that maybe 1/3 of the students are at UM with only a hazy notion of why they want to be there, with visions of a respectable profession, money, and parental approval swirling in the Llewellyn-ish mist (yes, i actually read the Bramble Bush) surrounding motivations for law school.

    Don’t look too hard for philosophical motivations. I am sorry. But most students are not going into public sector work…not because of the money…although that IS certainly an issue for those that ARE trying…but because they are NOT INTERESTED in public sector work.

  8. Michael says:

    But that’s exactly my point: most people are not saints either in law schools, in the legal profession, or among non-lawyers. But the fact that some people, I’d say maybe a quarter to a third of the class here and at almost any other law school, sort of drifted into it as the path of seeming least resistance (only to find that it is actually @!$#@#$ hard work) doesn’t in itself mean that they are any less (or more) interested in doing good than the average non-lawyer, who is also, you may have noticed, not all that saintly either.

    Law, however, unlike many other professions, holds out a seemingly tidy option for a life of good works. Less perhaps than medicine, but more than, say, accounting or plumbing. The issue I wrote about is whether the decision, one that most people inevitably make, to turn one’s back on that option makes it more likely for them to overreact in the other direction compared to non-lawyers who are also not planning a live of public service (which I don’t quite equate with the public sector by the way — there’s overlap but the sets are not at all identical).

  9. Bricklayer says:

    I don’t think that much debate has really taken place here.

    Michael has simply circled the wagons and proclaimed that the faculty always knows what’s best for its students. I say circled the wagons, because everything he’s argued is exactly what one would expect to hear from entrenched legal faculty. No to practicing instructors (wage competition), no to technological replacement of wasteful books (can’t expect his computer illiterate collegues to learn to use westlaw can we?), no to considering student input (can’t have the rest of the legal community thinking our charges don’t worship us!). No discussion, no reason, just no, no, no.

    I couldn’t help but chuckle at the explanation of why faculty publishing should matter to me. In essence, he’s saying that it is a good thing for me to be surrounded by students who are attracted to UM in order to ride on his coattails. If there are arguments there as to how the substance of my education is improved by either his publishing or the presence of an abundance of sycophants, I don’t see them. I hate to think I’m paying for things so attenuated. Opps, was that a faux pas in academic circles? A student reminding the faculty of who keeps the lights on?

    The great irony of this proclaimed attack against teaching with practical leanings is that the great majority of UM law lectures are consumed with professors criticizing judges and other scholars for adhering to rules that are unworkable or unmanageable! How quick they are to criticise theoretical failure, but never realize that 99% of the laptops aren’t taking notes, but rather are playing solitaire while waiting for an actually usefull nugget warrant diverting their attention.

    Keep telling students that its Superman’s fault that they have to “surrender” and “go corporate.” I’m sure that insight will be welcomed as insightful and helpful.

    For now, its too inconvenient for me to vote with my dollars. But the time will come when that voting will be quite easy, and absent change in faculty attitudes, I am quite sure how my ballots will be cast.

  10. Kenneth Fair says:

    A timeless debate: Does law school make people evil, or do only evil people go to law school?

    I do think that Mr. Froomkin has a point here. Those of us that didn’t have Mummy and Poppy paying the law school bill didn’t have the luxury of choosing a legal career outside of firm practice. It’s quite a shock to realize that you’ve taken out a mortgage on a house but only have a piece of calligraphed parchment to show for it. That parchment doesn’t keep the rain off your head for long.

    But it’s not so much the initial choice to work for a firm that’s the problem. The problem is that the life is itself seductive. You enter a world in which many people around you have a lot of money, some much more than you. And as much as you might be frugal yourself, you get a taste of that life as well. Golf outings with the corporate clients. Trips to all sorts of places (even if you spend the entire trip in a dusty warehouse reviewing documents). Recruiting dinners at fine restaurants.

    More than just the money is the mentality that pervades your superiors, your peer group, and most of those with whom you come in contact. “We work hard and play harder” is the ethic. You come to expect convenience at your fingertips. Vacations (if infrequent) in exotic locales and classy nights-on-the-town (also infrequent) are the norm. Some guy comes to you office to shine your shoes. Valet parking and car service and pick-up dry cleaning and restaurant food and maids and nannies all become facts of life, because you’re too damn busy and too damn tired to do any of this yourself.

    It’s all too easy to become inured to this luxury, to think that it’s expected of you, that you deserve it because you’re smarter and better than other people. You start to want to meet the “right” people, and to be sure not to “waste” your career and all the hard work you’ve done getting to that point. And you start to forget your old life, the one in which you ate ramen noodles for a week straight because you had to make it to the paycheck at the end of the month.

    Of course, you then start living on borrowed time. You’re getting paid huge amounts of money, but somehow you forget that huge amounts of money are going out the door to service your debt. You think you have to keep up with the Joneses, and the Joneses have so much more than you, so you mortgage your future. Really, how many law school grads are in more debt five years after they graduate from law school? I’d bet it’s a significant percentage.

    I managed to extricate myself from the firm life after 4-1/2 years, and it wasn’t easy. I was able to do so only because:

    1. I had no wife or family to support, so my decisions affected only me.
    2. I had a good core of values and beliefs, both before and after I went to law school.
    3. My parents are both teachers, and I had no family pressure to be rich or “successful.”
    4. I knew that I wanted to give myself the option of walking away, and I was disciplined enough to save my money and pay down my debt.

    Even so, it’s been hard to leave the firm life. I’m making a third of what I made before, and there are times when I miss the money and the excitement. I think that what I’ve gained in happiness, stress-reduction, and self-respect makes up for the money. But sometimes I wonder “what if” and question my decision to leave.

    As Bricklayer rightly points out, those with less direction have greater trouble. Not that I’m any paragon of moral virtue, mind you, but I knew what I wanted and what I didn’t want. Those who don’t have an even tougher time escaping. And that’s assuming they want to escape in the first place; sometimes those who go to law school do so precisely because they want to buy in to the system.

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