[Dave Heal's] Observations & Reports

Law School: Now With Less Law?

This is a re-post of a law school column I wrote about 2 years ago this week.

Three of the closing paragraphs from a recent New York Times article on the craptastic legal market:

If the downturn is prolonged, law schools will need to keep tuition and other costs in check so students do not graduate with unmanageable debt. More schools may follow the lead of Northwestern, the first top-tier law school to offer a two-year program.

Law schools may also become more serious about curriculum reform. The Carnegie Foundation for the Advancement of Teaching released an influential report that, among other things, urged law schools to make better use of the sometimes-aimless second and third years. If law jobs are scarce, there will be more pressure on schools to make the changes Carnegie suggested, including more focus on practical skills.

They may also need to pay more attention to preparing students for nonlegal careers. Law graduates have always ended up in business, government, journalism and other fields. Law schools could do more to build these subjects into their coursework.

So let’s get this straight. We’re at a professional school that might have the singular distinction of being described by both students and employers as leaving most of us woefully unprepared to do any actual work on our first day in the office. And the remedy for this is somehow to find a way to crowbar more stuff into the curriculum that isn’t the law?

Channeling, for a second, the male protagonist in Derrick Comedy’s Blowjob: that is the opposite of what is needed. The reason law graduates have always ended up in other jobs is often because they shouldn’t have gone to law school in the first place. For many students, that dual degree is a step towards gaining expertise in a field that will inform their law practice or catapult them to a teaching career. Those 12 credits of Law & “__” classes are merely satisfying an intellectual curiosity. But for others, this desire to do non-law things with their time at law school represents a lifeline thrown to a vision of themselves that they only wish they had the courage to pursue fully. And for others still it turns out that even if you enjoy the intellectual rigors of publicly sparring with Richard Primus over the finer points of constitutional interpretation, you may, surprisingly, not enjoy interminable electronic discovery or combing through an offer document looking for rogue blobs in brackets.

And I’m not merely talking about the petty but pervasive frustrations of any life that involves more than 55 minutes of sustained concentration and is infrequently punctuated by drunken burrito binges and Guitar Hero marathons. (Although, for those law students who have never held a 9 -5 job, having your introduction to the working world be 60-80 hours a week of document review is understandably sub-optimal.)

No, the heart of the matter lies in the fact that many law students are either uninterested in or ill-suited to being actual lawyers. For many, the practice of law, particularly at its lower, more mechanical levels, elicits the kind of marrow-level boredom that unmistakably means that you’ve failed in choosing a profession. Granted, the law is necessarily pyramidal; there is simply a lot of fairly mundane stuff you have to know in order to get to the ecstatic bull sessions that may characterize certain subfields of law as practiced at the highest levels. But being a lawyer is going to be really boring for a lot of people. In some circumstances being bored at work is OK, but it becomes quite a bit less OK when the boredom is a surprise and you’ve just spent 3 years of your life at law school and are severely undercapitalized as a result.

The idea that a law degree is a versatile one−”it’s the Swiss Army Knife of graduate degrees!,” says your Uncle John−while maybe true to a certain extent, is mostly a pernicious piece of self-deception transmitted from one generation of disaffected lawyers to the next. This is all in the interest of making everybody feel better about having taken out ~150k in loans and effectively wasted 3 years of prime life-living time. The truth is that not only is law school probably too long and expensive for people who actually want to be lawyers (unless we decide to make some or all of the third year a mandatory externship/apprenticeship), but it’s certainly too long and expensive for people whose ultimate goal is to do something else. The fact that some journalists are lawyers does not mean that law school is a good idea if you want to be a journalist. More than a handful of novelists and hand models are lawyers, too. These days, lots of hobos are lawyers. In fact, hobodom may in fact be the most likely alternative career path for some of today’s law students.

Current students find themselves entering the contracting legal market in medias res, where “res” equals a giant shitmist of uncertainty and plummeting job prospects. This means that a lot of people who viewed the law as camouflage for their indecision or as a cash-lined waystation en route to a career in competitive log rolling are finding themselves repeatedly kicked in their sensitive bits. And seriously in debt. Lots of debt.

So there’s a related question of don’t we think that there’s going to be something fundamentally wrong with a profession when applicants are discouraged from demonstrating an actual interest in the profession? And that once in law school students aren’t required to have any exposure to the sorts of things they’re going to be expected to do on the job.

Anna Ivey, a former Dean of Admissions at the University of Chicago and now The Authority on applying to law school, gives the traditional advice against turning your personal statement into anything resembling what she calls a “statement of purpose.” But why don’t law schools actually require or solicit something like this? While it might make Sarah Zearfoss’s job more tedious, having an additional essay expressing what people hope to get out of law school and fewer essays about manually masturbating wallabees on the Isle of Man might be a good thing. Maybe if applicants were evaluated, in part, on having thought a little bit about why they’re about to spend 150k of money they don’t have to get a legal education, we’d be one small step closer towards not producing lawyers who hate their jobs.

Because of the barriers to entry in the legal world, law school applicants are unable to get a real up-the-butcher’s-ass view of what being a lawyer actually entails. So, every year, thousands of post-graduates try to get as close as possible by being paralegals at large firms, an experience that miraculously doesn’t dissuade them from going to law school.

Business school students, on the other hand, almost always have prior experience doing something similar to what they hope to do upon graduation and are therefore more than eager to pay for two years of beer bonging, hand shaking lessons, and supervised business card exchanges, content in the knowledge that they’re going to enjoy their job upon graduation.

So, to circle back to the possibility offered up by NY Times piece: the last thing law school needs is less law. Our Law School in particular hasn’t shown any signs of mandating juggling or TV/VCR repair classes, and this is clearly a good thing. And while undeniably shitty for current students, the demise of the idea that law school is a risk-free path to riches for bored humanities majors might not be the end of the world.

HT: Prettier Than Napoleon

If Great Literature Was Written By Law Students

Song of the Gunner by Walt Whitman


I raise my hand, and sing myself,

And what I assume nobody should assume,

And all I read in Hornbooks will be shared with you.


I never loaf or smoke a bowl,

I preen and gloat at my ease observing ev’ry post-hoc fallacy.

Torts class, every atom of my life, form’d from this toil, this school.


Born here of lawyers born here from gunners the same, and their

parents the same,

I, now twenty-three years old, talking begin,

Hoping to cease not till death.


Meads and nap’d drools forsaken,

Non-latin phrases shunned for what they are: plebes’ language, verboten.

My ardor for precedents made, I wish to share at every hazard,

Thoughts unchecked without creative energy.


I Am Charlotte Simmons by Tom Wolfe

G. Edward Terwilliger began twisting Charlotte’s nipples as if they were radio dials, simultaneously palpating her soft palate with his tongue, alternately flexing and relaxing the tip with strokes in a ratio that matched the vote distribution in Heller. District of Columbia v. Heller 128 S. Ct. 2783 (2008). Flick flick flick went the tongue, but it was the delicate dance of his thumb and forefinger that occupied his cerveau, was his bailiwick. Suddenly, like a flash of fluorescent light, he remembered the 20th anniversary edition of Men’s Health that his roommate had slipped under the door earlier that afternoon as he was preparing to deliver a world-historical bowel movement into the toilet’s gaping white porcelain maw.  Brown it was, inert with extinguished life, an ex post indictment of an entire day’s worth of time wasted at student org meetings.

There, on page 36 of his mind, a firm reminder to vary the deployment of one’s sexual arsenal with each new conquest. God forbid the rest of the females in Law Firms & Legal Careers catch on to his lack of imagination. Mutatis mutandis, Terwilliger retreated deep into his mind, reached deep into his quiver – oh god! And now she quivered in kind! It must be fate!  – and, caressing the entire dimpled terrain of her areola, traversing back and forth between its murky surface and the milky white mammary tissue that spread out beyond it in invisible axial rings, looking very much like the surface of Venus on a summer solstice’s eve… – and he lovingly explored her breast with the élan of Marco Polo making his way to Asia, finally pressing triumphantly on her nipple and then waiting, mouth agape, for what that venerable periodical assured him would be Her Best Orgasm Ever.

Just then, like the Mighty Colorado at its confluence with the Green River, a wash of acetylcholine overwhelmed her synaptic cleft and she reared back like a horse frightened at full gallop. “Will you still love me tomorrow when your blood is no longer saturated with the eponymous Iced Tea from Long Island?.” she asked. “I’ll never keep you at arms length,” he whispered. “Your five-pointed highlighter is poking me,” she groaned. “I’m sorry,” he said, and removed his pants.


The Law Student’s Odyssey by Homer


LEEWS, speak to us now of those study techniques

that assure him a top 1/3 finish after managing

to suck his bank account Dry.

He came to see

some undergrads’ panties, maybe learn the common law.


While drunk at Rick’s his spirit suffered many torments.

And he fought to buy a Shark Bowl and take some co-eds home,

but though he wanted to, he could not get their digits—

They all replied and said they had no phones, the fools.

So he feasted on the burritos of Panchero,

God of Post-Bar Food—that’s how was snatched away his chance

of sleeping without distress. So now, son of Mass Produced Study Aids

tell us his fall from glory, starting anywhere you wish.

Embracing Your Inner Idiot

When J. Robert Oppenheimer left Harvard College and went to study experimental physics at the famous Cavendish Laboratories in Cambridge (England), he showed up and was, for the first time, surrounded by lots of people that were better than him at something. This is the guy who ended up knowing more about quantum physics than all but a handful of people in the US by the age of 25.  The same man who in the early 1940s helped figure out how to harness the recent discovery of nuclear fission and build an almost unimaginably destructive bomb out of comparatively tiny amounts of material.  Which is to say that he changed the course of the 20th century.  Oppenheimer was by all accounts a certifiable genius, but he was clumsy enough in a lab that he was apparently unable to conduct the high level experiments that he wanted to pursue.  He was so thunderstruck by this realization that he became depressed and suicidal.

What’s the point of all this, you ask? Well, this little parable is meant to illustrate one of the ineluctable facts of life: you are not as smart or good at stuff as you think you are.  Most of us, however, do not need didactic stories from the pre-Internet days to hammer this point home.  The closely related corollary is that at some point in your life–and for many of you law school is that point–you will in fact realize that you are not as spectacularly, effortlessly brilliant as your Mom led you to believe.  But the good news is that you can’t, and don’t have to be, good at everything.  What matters is what you do when confronted with these abrupt confirmations of your own vulnerability, inadequacy, ultimate meaninglessness, untreatable athlete’s foot, etc.

Oppenheimer ended up moving to Germany to become a golden god of theoretical physics.  Those of us with slightly more pedestrian brains don’t have that option.  But all but the very lucky or delusional will have to make similar choices.  We can either plow ahead, camouflage our deficiencies and become consumed by desperately trying not to be found a fraud, or we can embrace our own particular level of incompetence and harness it.

I know there’s a special kind of marrow-level sadness that accompanies the end of what, for many of us, was a prolonged period of adolescent self-regard.  But there are few people who go on to do great things without abandoning this egoistic perception of their own intelligence.  Even if you’re the second coming of Eve Brensike-Primus, there’s value in assuming the position of the dull student and asking questions accordingly.  Hell, even Socrates is believed to have said, “As for me, all I know is that I know nothing.”  Now, you can quibble with the meaning of the phrase in context all you want, but I’m choosing to give the middle finger to the intentional fallacy and use it here in accordance with its popular deployment in countless self-help books.

For all their faults, many of the students often derided as gunners are on to something.  The first year of law school is full of collections of simple words that give way to entire subfields of incredibly complex scholarship.  Some of it is probably so much tenure-track onanism, but scholars in these areas aren’t completely inventing all of the difficulties in deciphering phrases like “to regulate Commerce.” The law isn’t rocket science, but neither is it tiddlywinks, and a merely superficial understanding of a deceptively simple concept will frequently manifest itself further up the pyramid where the really interesting and important stuff is happening.  So, follow the lead of your local gunner: take a foundational concept and assume, if necessary, that you’re too dense to understand it.  Ask questions, break it apart, roll it around up there.

To unburden oneself from this idea that you either immediately get something and are smart or don’t and are a moron is really liberating.  There’s no shame in failing to understand something the first time around.  In fact, I would argue that a kind of willed idiocy is a virtue.  This can obviously be taken to an extreme, and I wouldn’t recommend walking into Kroger and demanding to know why Grape Nuts have neither grapes nor nuts.  Some of our zany language’s logic-defying quirks are in fact better left a mystery.

But there’s a reason why that annoying, extroverted person in your Spanish class was able to learn things much more quickly.  For better or worse, they weren’t worried about looking like a buffoon, like they didn’t know something.  And most areas of study are the same way.  If you can get rid of your preconceptions about what you’re supposed to be able to effortlessly understand and stop worrying about how that might directly reflect on your intellectual capacity, you will find a measure of comfort and, paradoxically, self-belief in the embrace of your own idiocy.

9 to 5? What a Way to Make a Livin’

Sometime in the spring of 2007, just before I decided to enroll at Michigan, I read about “Building a Better Legal Profession,” a new group composed of Stanford Law students devoted to, well, doing that thing in their name.  What a great idea, I thought; who doesn’t want better things?  Similar bursts of creative thinking did wonders for the mousetrap!  So these folks proceeded to put together a much-ballyhooed report cataloguing the mostly self-evident evils of BigLaw and otherwise communicating their earnest desire for more work/life balance and co-workers with varied skin color.  And while many of their goals are laudable, if you read the manifestos they’ve sprinkled around the web it becomes quite clear that these students are engaged in what has to be called, only slightly uncharitably, a T-20 circle jerk.  Essentially, they want the option of doing less work for less money and they want this opportunity at the country’s most prestigious firms (manifesto #1 was sent to the AmLaw 100) even though they claim that “[i]t’s not about finding the most prestigious place with the highest salary.”  It would be a stretch of only the physical sciences to say that the sense of entitlement oozes out of these papers.

Of course, now that we’re all cattle-class passengers on the silver gleaming death machine known as the Law School Graduating Classes of 2010-2012 (aka Those Students Considerably Less Idiotic but More Hopelessly Screwed Than the Class of 2013), it’s tough to say precisely what the intrepid students of BBLP hath wrought.  They barely had any chance at all to work their magic before the bottom of the legal market fell out and the door of opportunity flew out the window.  That’s right, the door flew out the window; that’s how bad things are out there.  Continue to imagine, if you will indulge the onslaught of metaphors, the atmosphere on this plane.  The engines have stalled, the nose is pitched sharply downward, and an unrepentant Kevin Smith is hurtling past the bulkhead as a human projectile, endangering the lives of countless passengers.  Which is to say, the current environment is such that it doesn’t seem likely that law students are going to be particularly receptive to the idea that they have any market power at all, let alone the ability to wield it for the benefit of the rest of the profession.

And yet, just last spring, students at such “premier law schools” as Yale, Harvard, Stanford and Columbia (quoting a National Lawyer piece on the group) gathered en masse (50 people total, actually) at the BBLP’s hilariously named  “National Conference of Student Leaders” to talk about the so-called movement.  While the group’s goals ostensibly include increased diversity and the desire for a positively robust pro bono program, the main rallying cry is about work/life balance.  In late 2007, the BBLP blog published the results of a survey claiming that summer associates were willing to take less money for fewer hours.  “Firms, take note,” they said, with no small measure of confidence that somebody was listening.  And sure, this was a few months before the start of the massive BigLaw layoffs in early 2008, so a certain small amount of the solipsism here is forgivable.  Sometimes it can be difficult to realize how good you have things.

But this idea that law students and new associates are going to drive any of the much-needed change in BigLaw culture is absurd.  This complete detachment from the realities of the working world is a symptom of the total lack of work experience among law students.  One of the many reasons you don’t see a comparable group of Business School students threatening to march on Goldman Sachs is that they found out from time spent working that you usually can’t have your cake and eat it too.  If you want to do interesting work and leave at 5pm, you’re going to have to poke around a bit to find that job, and it’s not going to be with an AmLaw 100 firm as a first-year associate.

Happily, these magical bastions of work/life balance and lower starting salary already exist.  They’re the smaller firms in smaller cities with less demanding clients.  Or they’re in any number of other industries that don’t involve having clients at all.  Newsflash, folks: you’re in the service industry! If Goldman Sachs wants that prospectus combed over for the 15th time, you (or some other overpaid associate) are going to do it, because Goldman is paying a lot of money for the privilege of telling you what to do.

Now, the billable hour is undoubtedly a hideous way to do business.  But its death is going to be brought about by clients that demand an end to astronomical bills for the half-awake efforts of an army of entitled know-nothings.  Or maybe firms are going to realize that the billable hour creates terrible incentives for their own employees.  But the billable hour is not going to go away on the strength of arguments about the inhumane treatment of associates.  And until firms are no longer constrained by the huge per-employee overhead costs, they’re going to be completely unwilling to even countenance the idea of hiring 1.5 times as many people to do the same amount of work.  Your fantasies of working from home and shoveling fistfuls of Count Chocula into your mouth while you complete exactly 8 hours of due diligence are going to have to wait a while longer.

I applaud the efforts of the BBLP to collect and provide information that was previously hidden away on NALP’s byzantine website.  And I think that students should certainly consider diversity and a firm’s demonstrated commitment to pro bono service when deciding where to go work after law school.  But let’s not kid ourselves about the differences between most of the top firms.  There are certainly exceptions, but most of the firms are functionally indistinguishable, and they’re only going to change in the ways the BBLP wants when both parties’ interests align.  And so long as big firms continue to want to make large amounts of money by doing large amounts of work, a lot of that work is going to get done by recent graduates.  If law students want to love their job and love it exclusively between 9am and 5pm, they need to look outside BigLaw for that experience.

Letter to an Erstwhile Valedictorian

As your 1L year gets under way, increasing numbers of adults in your life will describe the main difficulty of the first year of law school as “learning to think like a lawyer.” Not only do they make it sound exhausting and terrible, but loads of them have packaged this observation along with a general admonition against becoming a lawyer at all. This is information that might have been helpful a year or so ago but now seems more like hostility cloaked as advice. They’ll come brandishing out-of-context Shakespeare quotes and bemoaning the state of tort reform in two-sentence talking points and will aggressively accuse you of mortgaging your future only to be turned into a bigger and more useless jerk than you already are. There may be something to that last bit, actually, but now’s not the time to sort all that out.

You’d like to imagine, after having probably taken some time off, invented PCR, joined and left the academy, or done some other remarkable thing with your giant brain, that you at least have a reasonable shot at being good at and might even enjoy this “thinking like a lawyer.” What this usually refers to, I’m guessing, is mostly a kind of unalloyed reasoning process, having something to do with the ability to dispassionately carve up complex problems into their constituent parts and progress logically to a solution.

Pleasant surprise time: most of it really isn’t that new. Sure, there’s something uniquely systematic and initially slightly foreign about reading and processing caselaw. But if you’ve worked at all with texts or done any scientific problem solving (making a bong out of your Mountain Dew emphatically does NOT count), or even been able to reliably find Waldo, you’ve probably got the tools to do a passable job at reading legal opinions after some practice. That these opinions often more closely resemble Lewis Carroll’s Jabberwocky than something you’d expect to be a guide to the law will provide a considerable obstacle to your understanding. But eventually you’ll learn to distinguish legal sense from nonsense as well.

Like the MBA, the JD is a professional degree, and you should be prepared to be somewhat underwhelmed by the intellectual stimulation offered by some of the courses you’ll have to take. But look on the bright side: judging from a very small sample of, well, me and my roommate, your legal training will amplify your already heightened sense of your own rightness. And at the very least you will gain the ability to verbally bludgeon your mildly inebriated friends at home into acknowledging how right you are about everything all the time. Now, there are less expensive ways of becoming no fun at parties, but this is the particular one you chose, and you should embrace it. Or at least use your new power with care.

Indeed, what should instill you 1Ls with The Fear is not the Socratic method but rather the prospect of turning into that annoying cocktail party lawyer who thinks the rest of the civilized world always gives a crap about the fine distinctions that you’re going to be learning to care about. I believe that people who come into law school as tactful, empathetic people will usually emerge pretty much unscathed, taking with them some valuable tools and hopefully discarding whatever obnoxious groupthink tendencies are engendered by a prolonged suckling at a common teat. Thankfully, most of us are no longer 18 and therefore not as susceptible to turning into the legal equivalent of the obnoxious freshman philosophy major who’s just had his first Hegel-induced erection. But let this be a reminder: law school doesn’t have to change who you are. That may sound incredibly obvious and corny, but it becomes less self-evident the deeper in you get.

Not only does law school seem especially successful at burning think-like-a-lawyer pathways into the brains of eager, impressionable students, but it also seems to lock them irreversibly into writing really really lame prose. I would never begrudge your looking forward to peppering your casual speech with archaic latin phrases in that typically student-y way that results in a lot of creolization and awful puns. See, for example, my 7th grade Spanish class and the inevitable deployment of the made-up verb ‘ramajar,’ which provided four marking periods of juvenile comic relief before our teacher relented and finally taught us some sex slang. But there really should be an activist group lobbying against the yearly creation of thousands of head-smackingly dull prose stylists. On the other hand, according to one Georgetown Law professor at an event I attended before law school, few of his students knew how to write in the first place. So maybe there’s something noble in merely teaching us how to write a minimally comprehensible complete sentence, even if it’s only minimally comprehensible to a small subset of the population. That being said, your first exposure to Alex Kozinski or Oliver Wendell Holmes should convince you that you don’t have to give up writing lucid, unique prose in order to be precise and persuasive.

And so with that, here’s some unsolicited but heartfelt advice:

  1. Continue to do other things that make you happy. Law school can be dull and all-consuming, but everybody here used to have interests and even passions that didn’t involve Aspen Publishing. Keep doing them or your soul will die a thousand deaths.
  2. Having more or less failed at doing this during my 1L year I know it’s difficult, but try to keep reading stuff for pleasure. Whether it’s fiction or non-fiction or the Superficialist, it will be good for both your writing and your mental health to think about other things for some non-trivial amount of time every week. If you have to write it into your iCal in order to get it done, do it.

And finally, and most importantly:

  1. Give your classmates a break. Most people are kind of scared and intimidated and self-conscious about seeming smart. If on a daily basis you can try and be self-aware enough to acknowledge your own similar feelings, it’ll be easier to cut the kid in the front row some slack for being a bit overeager and obnoxious. This will probably take a substantial amount of effort and concentration. And, if you are like me, some days you won’t be able to do it. But on most days, if you’re conscious enough to give yourself a choice, you can choose to look differently at the guy or girl in your section that everybody dismissed as a gunner on the first day. Some of those people may be assholes, but many of them are good and well-meaning. Empathy isn’t a skill that is taught here, but if you can at least attempt to give people the benefit of the doubt, I’ve discovered they often surprise you.

1Ls, I wish you [way more than] luck!