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[Einer Elhauge, guest-blogging, May 23, 2007 at 9:16am] Trackbacks
The Death of Doctrinalism and Its Implications for the Entry-Level Job Market at Law Schools.

Doctrinalism is dead. One cannot get a job at a top law school nowadays as a doctrinal scholar. Or, to put it more precisely, you have to be ten times as good to get a job as a doctrinal scholar as to get one as an interdisciplinary scholar. And even then you cannot get hired at Yale.

Now by doctrinalism I do not mean any scholarship that considers doctrine or takes it seriously. I rather mean the sort of scholarship that simply describes doctrine or that assesses doctrine based solely on formalistic grounds having to do with the logic of it internal structure. It would not, in my book, be doctrinalism to analyze the functional theories that could explain some doctrine or lead to reform of it, or to measure the consequences of doctrine. Heck, that is what I do, and I am not about to declare myself obsolete.

Doctrinalism is dead for a very good reason. It is either too easy or mistaken. The variety of doctrinalism that is too easy consists of the purely descriptive articles. To be sure, good descriptive legal articles require hard work by very-smart, highly-trained lawyers. But the problem is that those sorts of persons are in relatively high supply compared to those who can come up with original ideas or empirical findings, so that such work is not going to get much credit in legal academia, even though it can be quite useful.

The part that is mistaken is the variety of doctrinalism that tries to explain legal results or predict future decisions based purely on formalistic logic. Devoid of any underlying functional theory, these theories turn out to offer little real explanation and serve as poor predictors. The formalisms are just too easy to spin in multiple directions, and we need some underlying theory to explain where the fault lines are likely to be and how judges and lawmakers are likely to be inclined to resolve them.

The one odd exception is Constitutional Law, where doctrinalism still appears to be alive and kicking. I suppose the reason for its exceptional status is that we have nine old persons on the Supreme Court who seem persuaded by doctrinal arguments and have immense power to impose results on the rest of us through constitutional decisions, however poor their underlying policy analysis.

But for the rest of us, the seriousness with which many constitutional scholars still take the task of parsing the precise language of Supreme Court cases that were largely written by law clerks is fairly astonishing and more than a little quaint. Thus, we have the oddity that the marquee legal subject, constitutional law, is also the least intellectually respected among law professors because it is the most doctrinal.

In any event, no law school aims to hire constitutional law scholars on the entry-level job market, so trying to make it as a doctrinalist is a nonstarter. But this raises a problem, because much of law school is spent becoming trained in doing doctrinal analysis. All the good professors also teach theory, but usually not enough theory to make students well-trained in doing the sort of interdisciplinary scholarship one needs to do to get a professorship at a top law school. And as I mentioned in my last post, much of the modern action is in empirical analysis of law, and practically none of us teach how to do that in our law classes.

So how can one overcome this entry barrier? One way is to get both a JD and a PhD. This has described the lion's share of entry level hires made at Harvard recently. But while this has been a successful approach for us, it creates problems as a systemic approach because very few people get both a JD and a PhD, and whenever one limits the pool of persons from which one picks, one may not get persons with as much raw talent and creativity as if one drew from a broader pool. Much of the most interesting work of the past generation was, after all, done by persons who had a JD but no PhD. One would not want to screen out the next generation's Richard Posner, Cass Sunstein, Frank Michelman, Mark Roe, Bill Stuntz, Ronald Dworkin, Larry Lessig, Guido Calabresi, Bob Ellickson, Bill Eskridge, Alan Schwartz, or Bruce Ackerman, just because they had no PhD. At least I wouldn't.

The solution, towards which law schools are steadily moving, is expanding programs for fellowships in law. These fellowships were nonexistent in my time, when people like me got law jobs at top schools like Berkeley based on a job talk jotted down on notecards late at night after working as a clerk. (Not everything was tougher in the old days, despite what us old fogeys like to say.) Since then, these fellowships have exploded.

I run one program, the Harvard Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, that will have eight academic fellows next year, earning $60,000 per year for developing their own scholarship in this crucial area, where the supply of academic candidates has historically fallen far short of law school demand. Harvard's Climenko Fellowship adds another fourteen. There are Olin Fellows, Berkman Fellows, and Houston fellows and probably many more I am missing. And that is just at Harvard.

These fellowships provide a vital opportunity for aspiring legal academics to steep themselves enough in modern legal theory or empirical analysis to be able to demonstrate some ability to do the sort of nondoctrinal interdisciplinary scholarship the modern academic law market demands. In the future, look for these fellowships to become more and more regularized into a form of quasi-necessary post-doc, with law schools looking mainly to them and to PhD programs for their entry level hires.

What, though, are the implications of the death of doctrinalism for the laterals market? That will be the subject of my posting tomorrow.

Bruce:
Thus, we have the oddity that the marquee legal subject, constitutional law, is also the least intellectually respected among law professors because it is the most doctrinal.

Them's fightin' words! :-)
5.23.2007 10:28am
jp2 (mail):
I suppose in way this is good news, insofar as it indicates a move further toward Posner's "real" professionalism in the law and away from guild professionalism.

It's also good news for practicing lawyers like me who want a niche in which to publish. Fewer professors writing doctrinal articles means more room for us practitioners to do so (granting that we won't see our work published in top law review).
5.23.2007 10:29am
wannaprof (mail):
"no law school aims to hire constitutional law scholars on the entry-level job market..."

Please explain--if that's the case, where do constitutional law scholars come from?
5.23.2007 10:33am
anonVCfan:
Thus, we have the oddity that the marquee legal subject, constitutional law, is also the least intellectually respected among law professors because it is the most doctrinal.

1. The joke that is critical legal studies probably beats out constitutional law for this honor.

2. Isn't most interdisciplinary scholarship written by people who aren't particularly good lawyers or particularly good social scientists? I.e. good philosophers publish in philosophy journals and teach philosophy students, good economists publish in economics journals and teach economics students.... mediocre economists try to wow a bunch of lawyers with excel sheets plopped into the middle of law review articles, mediocre social scientists write useless things like feminist critiques of parking regulations, etc.
5.23.2007 10:40am
Tracy Johnson (www):
There is an entry level doctrinal position I can think of off the top of my head. One can be a radio show host in the midnight to 6AM time frame. Then one can step up to be a pundit on CNN, MSNBC or Fox News.
5.23.2007 10:47am
Bruce Hayden (mail) (www):
Tracy Johnson

But in order to step up to the talking head level, you would probably also have to be a fairly attractive female, which eliminates a large percentage of those who might want to take this route.
5.23.2007 11:17am
David Krinsky (mail):
Prof. Elhauge:

Was doctrinalism, in the sense you describe, ever alive?

It seems to me that arguing and deciding cases based on logic and precedent is at the core of what lawyers do, but it has never shed much light on what lawyers should do, nor explained why and how they do it, nor indeed had much predictive power in the interesting cases of first impression. Doctrinalism is a tool of the trade (indeed, it is arguably the most important tool of the trade)--we use it in practice and thus we ought to learn it in law school. But it has never been the entirety of law. When was legal scholarship that merely summarized and made incremental predictions about case law of interest to top-flight scholars? (It continues to be an important function of regional law reviews, but it's much more the province of practitioners' guides, legal services, and treatises.)

On the flip side, it is neither worrisome, nor surprising, nor a sign of the Justices' age that most Supreme Court cases are decided on doctrinal grounds. This is how precedent works. Theory, pragmatism, equity, and policy have important roles to play--and I think you underestimate the extent to which they have motivated Supreme Court decisionmaking both within and without constitutional law--but at bottom, the practice of law, unlike legal scholarship, is constrained by precedent and is thus doctrinal in character.

Indeed, with the rise of "strict constructionism," pitched battles over judicial activism, etc., I don't think the role of doctrinalism and precedent in legal decisionmaking is diminishing as an older generation dies off--quite the contrary. (But--aha!--that itself is not a doctrinal prediction.)

Or am I misunderstanding you?
5.23.2007 11:21am
Kevin! (mail):
This post would be better if you defined 'doctrinal' in a way that was clear to non-Law Professors.
5.23.2007 11:21am
Alan Gunn (mail):

The part that is mistaken is the variety of doctrinalism that tries to explain legal results or predict future decisions based purely on formalistic logic. Devoid of any underlying functional theory, these theories turn out to offer little real explanation and serve as poor predictors. The formalisms are just too easy to spin in multiple directions, and we need some underlying theory to explain where the fault lines are likely to be and how judges and lawmakers are likely to be inclined to resolve them.


Interesting that a post offering a look at the future of legal thought swallows whole Holmes' view of the law as a prediction of what judges will do. I practiced law for a while and never once attempted to predict what a court would do. The ready acceptance of Holmes' "theory" in academic circles shows, I think, how much legal academic thought has been warped by the overabundance of former litigators in law schools. Most lawyers do deals--they seldom or never try cases. And few if any office practices involve predictions of courts' actions: you plan transactions to get what your client needs with a minimum of fuss, not to go into court on the basis of a prediction about what some judge is going to do.

My own theory--not about law but about the pernicious influence of litigators on academic law--is that litigators are disproportionately attracted to law schools because litigation is not an intellectually rewarding area of practice, as compared with, say, taxation. As some evidence, I'll note that many tax practitioners produce first-rate scholarship; few if any practicing litigators do.
5.23.2007 11:28am
Alex 2005 (mail):
This apparently is your definition of doctrinalism: "I rather mean the sort of scholarship that simply describes doctrine or that assesses doctrine based solely on formalistic grounds having to do with the logic of it internal structure." Does that mean writings that simply criticizes a particular line of cases because they are not logically coherent? (e.g., point out why Case C does not follow from Case A and B?) Does anyone do ONLY that in their writings?

Second, name me some "original legal scholarship" that has been produced in the last 20 years. That, I suppose, depends on what you mean by "original"?
5.23.2007 11:36am
Ben Barros (mail):
Wannaprof, when Prof. Elhauge says that "no law school" hires entry-level con-law people, he really means "no top-five law school." The top schools typically hire their con law people laterally. Most schools hire entry-level con-law people. This is probably the single most competitive area in law school hiring, though, and many of the people hired for these slots (many are former S.Ct. clerks) are hired through a process that sidesteps the main AALS process.

I agree with the trend in fellowships, but I wonder whether the fellowships might evolve over time, taking on more structure that gives some of the academic training that a Ph.D. program provides. It is unclear to me how having a year or two of self-directed research really helps to develop academic competency.
5.23.2007 11:37am
Zathras (mail):
From my experience, the death of doctrinalism as described by this post is limited to the top 10-20 law schools. Most other schools still place an emphasis on doctrinal legal research. That such research is now eschewed by the big boys leaves an important gap in the research.

The real question is whether the top schools are several steps ahead of the other schools behind in research or whether they are merely consigning themselves to arcane irrelevance.
5.23.2007 11:43am
frankcross (mail):
Interesting that a post offering a look at the future of legal thought swallows whole Holmes' view of the law as a prediction of what judges will do. I practiced law for a while and never once attempted to predict what a court would do. The ready acceptance of Holmes' "theory" in academic circles shows, I think, how much legal academic thought has been warped by the overabundance of former litigators in law schools. Most lawyers do deals--they seldom or never try cases. And few if any office practices involve predictions of courts' actions: you plan transactions to get what your client needs with a minimum of fuss, not to go into court on the basis of a prediction about what some judge is going to do.

I find this curious. There would be no reason to create a contract, if not in anticipation of what some judge is going to do. That's the reason for choice of contract language, the shadow of the law. Now, maybe all your deals are nonenforceable relational ones, but those are not the norm. In fact, an awfully large number of contracts have choice of law and choice of forum clauses. Why would that be?
5.23.2007 11:51am
mark gergen (mail):
Last year a candidate for dean at Texas remarked to me that no elite school should hire a mid-career scholar who had undertaken to serve as a reporter for a restatement. I give him credit for candor, as he was describing me (as I expect he knew) while referring to someone else. I think most people (including the speaker) would agree that the person he was referring to is very able. The criticism was of the project, and not the person. This is pretty good evidence for Einer's main point.

I prefer the label "conceptualism" to "doctrinalism." By conceptual legal scholarship I mean scholarship that tries to hone the concepts that we use to explain legal decisions to give the best account of the reasons for the decision. It is post-diction, not pre-diction. Einer is correct in observing that conceptual legal arguments are little valued among high-end American legal academics, other than in the field of constitutional law. We understand that legal concepts rarely resolve difficult normative questions--they merely frame the problem. Thus the label "pragmatic conceptualism," which I take from Ben Zipursky. That said, empirical and normative analysis tends to be at least as fallible for all too familiar reasons.

Not suprisingly, I disagree with Einer's assertion that conceptual legal analysis is undervalued because there is an over-supply of people who can do it well. Looking around me, I see little evidence for that proposition. Rather the quality of conceptual analysis in private law in the United States generally is dreadful, both in legal scholarship and in the courts.

As for how we got to this point, my short-form explanation is that the choice in US legal education to teach private law as a "national" subject -- i.e., not focusing on the body of law of any one state -- begat an understanding of the fallibility of legal concepts, which begat legal realism, which begat later generations of legal scholars who disdain thinking about legal concepts for other modes of thinking that have more cachet because of their association with other academic disciplines. Add to this the hubris of progressives and economists, who believe in the power of law as a tool to influence human behavior or the allocation of resources and power.
5.23.2007 12:05pm
OrinKerr:
I have David Krinsky's question: Was doctrinalism ever alive? I have read a lot of law review articles going back decades, and I'm not sure I've ever seen a purely doctrinalist article written by a law professor (perhaps a few written before 1930 or so, but that's about it).
5.23.2007 12:08pm
Justin (mail):
Is it possible to get a job as a "doctrinal" professor at a lower ranked law school, and then "build" an interdisciplinary record? If so, is that a good solution?
5.23.2007 12:10pm
Mark Field (mail):

I have David Krinsky's question: Was doctrinalism ever alive? I have read a lot of law review articles going back decades, and I'm not sure I've ever seen a purely doctrinalist article written by a law professor (perhaps a few written before 1930 or so, but that's about it).


If you believe Brian Tamanaha, the answer seems to be no.
5.23.2007 12:20pm
Matt W.:
If only schools sought to hire good teachers instead. (teaching and research not being mutually exclusive of course, but it would be nice if that were the focus.)
5.23.2007 12:55pm
elChato (mail):
Not suprisingly, I disagree with Einer's assertion that conceptual legal analysis is undervalued because there is an over-supply of people who can do it well. Looking around me, I see little evidence for that proposition. Rather the quality of conceptual analysis in private law in the United States generally is dreadful, both in legal scholarship and in the courts.

now THAT is an interesting, and good, point.
5.23.2007 1:01pm
Alan Gunn (mail):
frankcross asked:


There would be no reason to create a contract, if not in anticipation of what some judge is going to do. That's the reason for choice of contract language, the shadow of the law. Now, maybe all your deals are nonenforceable relational ones, but those are not the norm. In fact, an awfully large number of contracts have choice of law and choice of forum clauses. Why would that be?


Sure, you want your contracts to be enforced in the rare case in which you end up in court. But you don't scratch your head and think hard about what a court might do with some novelty you've dreamed up--you try to stay in the mainstream so that courts won't even question your deal. The "prediction" here is about the same level, intellectually, as when you slow down in the area of a known speed trap because you can "predict" that if you're caught going much over the limit you'll pay a lot and get points on your license. This is not the kind of "prediction" that requires us to give up doctrinal scholarship and take up economics, so we can do it better. (Not that economists have ever, so far as I know, paid much attention to predicting what courts will do.)

A thought experiment that I used to give my students was to suppose that someone had created a machine that could accurately predict the decisions of particular courts in particular cases, and was offering to sell it to you at a high price. Assume you couldn't transfer it, and didn't want to change the nature of your practice. Would it be worth buying? If you were a litigator, sure: You'd know whether to accept settlement offers and whether to appeal or fight the other side's appeal. For most office lawyers, most of the time, it would hardly be worth $50. You know the answer to all the easy cases already, and a major goal in planning most transactions is to avoid being a hard case.

But I may be conceding too much. I recall learning in my first semester of law school that the Wisconsin decisions seemed to say that requirements contracts were unenforceable in Wisconsin, and that Wisconsin businesses nevertheless used requirements contracts all the time. In any event, my recollection of practice was that I thought hard about a lot of things, but not about what courts were likely to do. (I did once have occasion to try to predict what Congress was likely to do, on the basis of a speech by President Nixon saying that he was going to push for the re-enactment of the investment tax credit, but without benefits for imports. I got it right, too, despite having been the victim of a largely doctrinal education.)
5.23.2007 1:09pm
anonVCfan:
If anyone wasn't intending to already, disregard my previous comments. There's a decent debate going on here, and I should just shut up and read. In my slight defense, I hadn't had my coffee yet.
5.23.2007 1:22pm
David in NY (mail):
Interesting. I guess this means that law professors are not writing for those who would presumably be their main consumers -- students, lawyers, and judges. That leaves their only readers to be other law professors and the ocassional academic from another field out slumming.

This situation could certainly not last if law reviews were not subsidized by law schools as a means of certifying the abilities of their top students, a subsidy permitted by the atrocious tuition charged by those schools.
5.23.2007 1:34pm
frankcross (mail):
Alan Gunn, I didn't mean to say give up doctrinalism, that's an important part of prediction. And most lawyers don't seek out those novelties that will change the law. But some do. And they do change the law. Somebody challenged the well ensconced aiding and abetting liability under the Exchange Act, predicting that the Supreme Court would say it didn't exist. They were right and it was very important. I agree that it is litigators who are making those predictions on the margin, and transactional lawyers generally seek safe predictions. But it is the litigators that are making the changing law that the transactional lawyers later rely on.
5.23.2007 1:59pm
Andy (mail):
"But you don't scratch your head and think hard about what a court might do with some novelty you've dreamed up--you try to stay in the mainstream so that courts won't even question your deal."

This probably depends on what type of practice you have. I work at a large firm servicing wall street and I spend a tremendous amount of time thinking about whether or not a suggested novelty is going to 'work'
5.23.2007 2:07pm
Alan Gunn (mail):
Andy wrote:


"But you don't scratch your head and think hard about what a court might do with some novelty you've dreamed up--you try to stay in the mainstream so that courts won't even question your deal."

This probably depends on what type of practice you have. I work at a large firm servicing wall street and I spend a tremendous amount of time thinking about whether or not a suggested novelty is going to 'work'


OK, but what do you mean by "work"? I've planned a lot of transactions for clients. I don't ever remember doing one where our goal was to get into court and have the court say that what we'd done was OK. The usual goal includes staying out of court, if at all possible.

Here's another thought experiment. Who are the top lawyers in your field? Are they the top lawyers because they have a better track record at predicting what judges do than lesser lawyers? Are there even data on this? (And, to tie it into the subject of the post: is there any reason to think that practitioners of interdisciplinary scholarship are better at predicting judicial behavior than doctrinal scholars? I like interdisciplinary work--especially that involving law and economics. But I like it because it helps me understand things, not because it helps me make predictions. )
5.23.2007 2:37pm
OrinKerr:
I wonder how much of the trends in legal academia are really just about finding something new. Doctrinal work is valued when doctrine is changing rapidly, as in the Warren Court period, because there is new doctrine to assess and the scholarhip says something new. Right now the law is unusually stable, so there isn't much to say: it's hard to say something new about it. We're all looking to other areas not because they are somehow more valuable in an absolute sense, but rather because they seem to offer the promise of something new in a period of doctrinal stability.
5.23.2007 2:41pm
wm13:
I wonder if the changes in the legal scholarship that this post describes will result, over time, in the content of law school education becoming less and less doctrinal. That would make the elite law schools like the elite colleges, in that rather than imparting useful knowledge to their students, they would serve mostly as screening facilities for employers, and a JD degree would increasingly mean not that the recipient knew something useful about, say, secured transactions, but merely that he or she was very smart and hard-working. So law firms would have to run seminars and training sessions for their young associates (as many do now) on 704(b) allocations, or the SEC registration process, or whatever.
5.23.2007 2:52pm
jp2 (mail):

That would make the elite law schools like the elite colleges, in that rather than imparting useful knowledge to their students, they would serve mostly as screening facilities for employers


I think that's already an apt description of the law schools at Harvard and Yale.
5.23.2007 3:13pm
jp2 (mail):
Alan Gunn, Frank Cross, and Andy -- I tend to think (respectfully) that Alan may be overgeneralizing from his experience. Yes, I do know some transactional lawyers who seem to equate "the law" with "what everybody does." But at least in my own practice area (corporate counseling), my colleagues and I are frequently presented with new structures by clients that want to know whether such structures will fly if challenged in court. In addition, even at the mundance level of drafting, I continually have in the back of my mind the question, how would a court be likely to interpret this language? This attitude is not the same as planning to be in court, but rather acknowledging that if things don't go as the contracting parties anticipate, the import of their agreement could very well be decided by a judge.
5.23.2007 3:30pm
Kenvee:
wm13:


So law firms would have to run seminars and training sessions for their young associates (as many do now) on 704(b) allocations, or the SEC registration process, or whatever.


That sounds like a pretty accurate description of our current system to me. No one learns the actual practice of law in law school. You learn about generalized concepts of criminal law, torts, property, constitutional law, etc. But the focus is on learning to "think like a lawyer". Anything practical is learned in Bar review courses or on the job. That's why it's getting harder for baby lawyers to get jobs in smaller firms, because they just can't afford to train them how to be a lawyer instead of just thinking like one!
5.23.2007 4:18pm
Fat Man (mail):
JP2: "It's also good news for practicing lawyers like me who want a niche in which to publish."

As a practicing lawyer I stopped reading academic law journals years ago. I relied on the Business Lawyer (an ABA section publication) and the BNA newsletters in securities and corporate law. The ABA journals are the best place to publish something another lawyer might want to read. the stuff published by Harvard Law School is useless for carbon based life forms.

wannaprof: "Please explain--if that's the case, where do constitutional law scholars come from?"

Liberals come from virgin birth. Conservatives are spawn of the Devil.

anonVCfan: "Isn't most interdisciplinary scholarship written by people who aren't particularly good lawyers or particularly good social scientists?"

Yup, see above.

David Krinsky: "Doctrinalism is a tool of the trade (indeed, it is arguably the most important tool of the trade)--we use it in practice and thus we ought to learn it in law school."

Another demonstration, as if another were needed, Grasshopper, that your bourgeois logic is totally useless in understanding the nirvana that is a "top 5 law school." If the students are smart enough to get in, they are smart enough learn that stuff on their own. Sort of calls into question what the students are getting for their $100,000.

"When was legal scholarship that merely summarized and made incremental predictions about case law of interest to top-flight scholars?"

Before the 1960s. The names on all the major treatises belonged to professors from Harvard, Yale and Columbia, who also wrote the first generation of restatements.

Alan Gunn: "The ready acceptance of Holmes' "theory" in academic circles shows, I think, how much legal academic thought has been warped by the overabundance of former litigators in law schools."

The real problem is that most law professors have about 4 years of post law school non teaching experience. Often solely as a judicial clerk. They have never practiced and have no idea what it is about.

Zathras: "From my experience, the death of doctrinalism as described by this post is limited to the top 10-20 law schools. ... That such research is now eschewed by the big boys leaves an important gap in the research."

It would only leave a gap if the profs at the "top 10-20" law schools had something to contribute. Given their general lack of real world experience and their typical academic biases, I am quite skeptical that they have anything to contribute or to say that would be of interest or use to a carbon based life form.

"The real question is whether the top schools are several steps ahead of the other schools behind in research or whether they are merely consigning themselves to arcane irrelevance."

The latter.

mark gergen: "Last year a candidate for dean at Texas remarked to me that no elite school should hire a mid-career scholar who had undertaken to serve as a reporter for a restatement. I give him credit for candor, as he was describing me (as I expect he knew) while referring to someone else."

What an @$$#01&. A real Texan would have asked him to step outside and beaten him to a bloody pulp.

wm13: "That would make the elite law schools like the elite colleges, in that rather than imparting useful knowledge to their students, they would serve mostly as screening facilities for employers, and a JD degree would increasingly mean not that the recipient knew something useful about, say, secured transactions, but merely that he or she was very smart and hard-working."

It was that way when I graduated in a previous millennium.
5.23.2007 6:04pm
wm13:
I think some people in responding to my previous comment understate the utility of the law curriculum of the past, at least the curriculum at Boalt in the 1980s. Of course I didn't learn to draft partnership agreements in law school, but I did learn what the "substantial economic effect" test of the 704 regs meant. I didn't learn where you go to probate a will (still don't know that), but I did learn all those rules about class gifts and those sorts of issues. A course in economic analysis of the tax law, or in comparative international perspectives on property inheritance, or something, wouldn't have done that.

Of course, I also took a lot of courses in things like jurisprudence and legal history.
5.23.2007 7:09pm
Dave Hardy (mail) (www):
1. Law schools being dominated by litigators? Where's that? From what I've seen, the standard route to faculty these days consists of getting a JD, maybe a couple of years of clerking, and heading for academia.

2. Litigators don't try to predict what courts do? You spend a heck of a lot of time doing just that. And not in the abstract sense that Holmes meant. Who's the judge (or judges), what do they like or dislike, do they follow the law or their own preferences, are they smart (or do they have a smart clerk, grin), did they do defense or plaintiff's work (most often they did criminal before going on the bench, oh, well).

3. Prof. Kerr suggests that the movement from doctrininalism may be a result of the law calming down, as it were. I suspect that may be a major part of it. Under those conditions, the possibility to "find something new" fades out after some years. I went to law school toward the end of the Warren period and the beginning of the Burger one, and there was lots of material to think and write about. Today ... what new can you say about Miranda, first amendment and pornography, etc., etc., etc.? When a field exhausts, people look for something else. Look at how painting went from detailed, accurate, depiction to matters of style to painting big cambell soup cans to welding girders together (and in most cases, I note, very inferior welding jobs... artists rarely know how to handle an arc welder competently).
5.23.2007 9:41pm
Alan Gunn (mail):
Dave Hardy wrote:


Litigators don't try to predict what courts do? You spend a heck of a lot of time doing just that. And not in the abstract sense that Holmes meant. Who's the judge (or judges), what do they like or dislike, do they follow the law or their own preferences, are they smart (or do they have a smart clerk, grin), did they do defense or plaintiff's work (most often they did criminal before going on the bench, oh, well).


Re-read my post; you've got it exactly backward. I said that little of what transactional lawyers do involves prediction in any serious sense, though litigators do predict judicial actions. The main point of my complaint about the over-representation of litigators on law faculties was that their focus on prediction gets taken to be what lawyers do, when most lawyers do things quite different.
5.24.2007 9:09am
Kenvee:
wm13:

Well, I can't speak for what was happening at law school in the 80s, but I graduated in '03 and can honestly say I didn't learn a single practical thing for my current criminal law practice. From my discussions with my coworkers and BarBri classmates, the same was true for most other law schools at least into the early 90s. Now, some law schools will have a clinic or a few practical classes as electives, but the vast majority of it is not practical at ALL.

(There are a few schools that are an exception. Baylor Law is noted for its third year "boot camp" with a heavy focus on practicalities.)
5.24.2007 10:39am
David Drake:
I concur with JP2. The role of the contract lawyer is to attempt to predict what the courts are likely to do with a transaction if it comes before them and to clarify the language in which the concepts are expressed so that a judge who knows nothing about the industry area or the parties is able to grasp what the parties agreed to. Most transactions involve court-tested concepts, but some don't, and, in my experience, almost every transaction involves a new twist or two that needs to be carefully thought out and expressed.

Moreover, I routinely write legal opinions that, in effect, predict what a court will decide in regard to a particular transaction, at least with regard to the large contours: that the seller's obligation to deliver the assets or that the borrower's obligation to repay the loan is enforceable.

Contract law is different from some other areas in that we contract lawyers, for the most part, shape the law that applies to our transaction rather than simply react to a situation that arose in the past. And the whole purpose of the contract is to keep the parties out of court by thinking through what could go wrong in the deal and resolving the problem in advance and, to the extent that the other party permits, in such a way that our client will prevail should the transaction end in a dispute. For example, we almost always provide for arbitration so that someone who hopefully knows something about the specific industry will be, in effect, the trier of fact instead of a judge or a jury; this is because we have learned to predict that courts much too often do badly in resolving business disputes, at an exhorbitant cost of time and money.

To get back to Frankcross's much earlier comment on choice of law and choice of forum clauses. I don't opine on them--our opinions specifically carve them because of the uncertainty involved in enforcement. But I routinely include them in my contracts anyway because (a) they help arrive at certainty and, (b) even if a court refuses to enforce them, their presence doesn't hurt.
5.24.2007 1:43pm