A Yale Professor Offers A Most Yale-Like Response To The ‘Length of Law School’ Debate

By Elie Mystal (abovethelaw.com)

If I were going to write an Onion-style parody of a Yale law professor defending the third year of law school in an op-ed, I wouldn’t come up with what Yale professor Bruce Ackerman just dropped on the Washington Post. It’s too on-the-nose to be funny as fiction. It’s too “exactly what I thought he would say” to qualify as parody. For the love of God, the man starts his defense of the third year of law school by quoting Oliver Wendell Holmes. He doesn’t start with employment statistics or any analysis of economic value or even a new study about the value of higher education generally. He’s a professor at the Yale Law School, so of course we’re starting with Holmes.

Since I’m not making it up, since a Yale Law School professor actually did write an op-ed about the current state of legal education in which his first reference is to a man who died in 1935, it’s freaking hilarious. I mean, thank God we have Yale law professors to reanimate Holmes so he can weigh in on our modern debate. When I asked old Ollie what he thought about the value of a law degree during a time of stagnant legal employment and skyrocketing tuition, he just told me, “My, you speak so well for a Negro. Since I’m sure society has evolved much since my death, I’m probably not the right guy to ask.”

But let’s see what Professor Ackerman has to say…

Ackerman’s Washington Post op-ed is really the most Yale way possible of thinking through the third year of law school:

President Obama was dead wrong last month in suggesting that law school educations should be only two years. The third year is not an expensive frill but a crucial resource in training lawyers for 21st-century challenges.

U.S. law is in the midst of an intellectual revolution. Supreme Court Justice Oliver Wendell Holmes saw it coming more than a century ago: “For the rational study of the law the blackletter man [who focuses on existing legal rules] may be the man of the present, but the man of the future is the man of statistics and the master of economics.”…

Law schools already are taking these questions seriously. Yale, for example, offers courses on the use and abuse of statistics, the implications of behavioral and financial economics for regulation, the significance of social psychology in the criminal justice system, the potential of political science in designing better decision-making institutions and the ways different contemporary theories of justice constrain the use of cost-benefit analysis. These discussions combine theory with concrete examples and provide a context for similar themes when they are encountered in more doctrinal courses. Cutting back to two years of study will put an end to these evolving trends and effectively push legal education back more than 75 years.

If Obama’s “cost-cutting” measure were adopted, it would impoverish American public life. Once two-year graduates move into practice, they won’t be able to deal adequately with bread-and-butter issues of antitrust, intellectual property or corporate law, let alone with the challenges of civil rights or environmental law.

For those who didn’t go to the Yale Law School, let me translate those thoughts into third-year course titles:

• “The use and abuse of statistics” = Math Without Numbers
• “The implications of behavioral and financial economics for regulation” = Defeating Republicans at Cocktail Parties
• “The significance of social psychology in the criminal justice system” = Modern Day Lynchings and You
• “The potential of political science in designing better decision-making institution” = Seriously, F**k Congress
• “The ways different contemporary theories of justice constrain the use of cost-benefit analysis” = Keep Your Economics Out Of My Law

Kidding aside, I’m not saying that those courses can’t be useful. I don’t think Obama is saying that those courses can’t be useful. I think what people are trying to say is that those courses should not be mandatory. Those courses should not be required by the ABA and imposed upon all law students as a necessary step before they’re allowed to be admitted to the bar. If Yale wants to teach those courses, fine. I’m sure the school will still get students who are more than happy to take them and pay for them.

But if some other school doesn’t want to offer these courses, that should be fine too. If some student doesn’t want to take those courses, they shouldn’t have to. Students should be able to say, “I’m sure it would be awesome to learn about comparative international constitutional law, but I’m going to skip that, pass the bar, and start representing battered women now, if you don’t mind.” Okay? What Larry Tribe needs to know to do his job and what Franklin and Bash need to know to do their jobs aren’t the same goddamn thing.

I don’t think two years versus three years needs to be the subject of a grand theoretical debate. I think there’s a practical question: “Can people represent paying clients after only two years of law school?” Since the answer to that question appears to be an overwhelming “yes,” I really don’t give a crap about whether a DUI defense attorney in Arkansas is prepared to contribute to decision making in “American public life.”

Of course, my application to the Yale faculty is still on hold. Ackerman has tenure:

[If we allow two-year law schools,] [i]ncreasingly, lawyers will become secondary figures who prepare the way for “experts” to present the crucial arguments before administrative agencies, courts and legislatures. Decision-makers with two-year law degrees will proceed to rubber-stamp the expert testimony that seems most impressive because they aren’t prepared to test it in a serious way.

In contrast, if law schools redeem the promise of a three-year curriculum, their graduates will have something valuable to contribute to the larger conversation….

Rigorous PhD programs in economics or statistics — or even political science or public policy — increasingly focus on formal models and big data, pushing the lawyer’s emphasis on concrete problem-solving to the periphery. There is a big question, then, concealed by Obama’s modest proposal: Should the future of U.S. law be shaped through a conversation between lawyers and technocrats, or should it be dominated by technocrats alone?

Here’s my “big question,” dear professor: Should the future of U.S. law graduates be shaped by a conversation between lawyers and clients, or should it be dominated by a conversation between lawyers and creditors?

Look, the Yale way of educating lawyers has always worked FOR YALE. It’s always worked for Yale Law School graduates. The problem is that it doesn’t work for every law school in the country. It doesn’t work for everybody copying Yale. And it’s too expensive.

For all the courses he thinks new lawyers need to take, it seems like Ackerman needs to take a course about how different things are different. Call it Distinguishing Different Approaches for Dummies. Why can’t Yale have one system, William & Mary have a different system, and NYLS have yet a third system? Trust me, people go to those three schools for three different things, and only the Yale kids are there to engage in the grand intellectual conversation between lawyers and technocrats. Some people go to law school to argue over the Fourteenth Amendment, some people go to law school to learn how to practice law, and some people go to law school because they can’t think of anything better to do. Not everybody can afford to go to law school just because they like being in conversations.

Sorry, there I go again, talking about the practical concerns of the thousands of people going to law school instead of the intellectual richness of the few hundred people at Yale. Professor Ackerman, set me straight:

We have come a long way since Alexis de Tocqueville emphasized how American lawyers dominated lawmaking in the 19th century. The days of lawyerly monopoly have passed, but modern law schools can help sustain the distinctive values of the legal tradition in a different world. It would be tragic if short-term cost-cutting makes it impossible to succeed in this long-term project.

Yes, because if there’s one thing we can learn from de Tocqueville it’s that American exceptionalism is totally based on hierarchical rules imposed by a central governing authority that reduce experimentation and creativity (in case you haven’t read de Tocqueville, I’m being facetious).

You know what’s amazing here? It’s a Yale law professor, of all people, who seems to not understand the difference between Yale Law School and something like Cooley Law School.