{"id":3577,"date":"2009-02-02T14:55:53","date_gmt":"2009-02-02T19:55:53","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=3577"},"modified":"2009-02-02T17:36:28","modified_gmt":"2009-02-02T22:36:28","slug":"cui-bono","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/02\/cui-bono\/","title":{"rendered":"Cui Bono?"},"content":{"rendered":"

Last month, Jessica Slavin’s short post on “Things Law School Doesn’t Teach”<\/a> <\/em>caught my eye.\u00a0 Professor Slavin’s post linked to a public defenders’ blog in Connecticut which contained a list of “10 things I didn’t learn in law school,” a list seemingly assembled without a lot of thought, apparently just a bit of lighthearted fun.<\/p>\n

The comments to the post, on the other hand, were hardly lighthearted, especially the comments of Professor Papke and John Kindley.<\/p>\n

Professor Papke wrote:<\/p>\n

. . . I thought the list was cynical to a fault.\u00a0 Too many lawyers have a sad bitterness and mean anti-intellectualism about them.\u00a0 Maybe living in debt and working in the context of hierarchy and bureaucracy produces those attitudes.\u00a0 I wish somehow lawyers could remember law school as a demanding but enriching academic experience.<\/p><\/blockquote>\n

<\/p>\n

. . . We don’t want law school to be lawyer-training school.\u00a0 When we cave in to demands of that sort from the ABA and assorted study commissions, we actually invite alienation among law students and lawyers.\u00a0 Legal education should appreciate the depth of the legal discourse and explore its rich complexities.\u00a0 It should operate on a graduate-school level and graduate people truly learned in the law.<\/p><\/blockquote>\n

John Kindley countered:<\/p>\n

The biggest flaw in [Professor Papke’s] philosophy is that law school is mandatory,\u00a0 if you want to practice law.\u00a0 The government of most all states will forcibly prevent you from doing it unless you’ve gone through those three years.\u00a0 It’s not too much to ask, therefore, that there be a close relationship between what is taught in those three years and preparing students for the actual practice of law.\u00a0 People can think deep thoughts about the law, and pay for the privilege, if they choose to do so, maybe as an elective . . . . But I don’t feel like I or anyone else should be forced to pay for these high-falutin intellectual pursuits in order to practice a profession that for better or worse does not depend on such pursuits.<\/p><\/blockquote>\n

I was a bit surprised that Mr. Kindley’s comment attracted no responses since it was pregnant with so many issues about legal education.\u00a0 Should a law degree be required for the practice of law?\u00a0 All kinds of\u00a0 legal practice, or just some?\u00a0 Should three years of law school or the completion of 90 credits be required as a necessary condition for bar admission?\u00a0 Why not one or two years, coupled with a rigorous bar exam?\u00a0 Why not make law available as an undergraduate subject of study, as it is in many countries?\u00a0 Why require a baccalaureate necessitating four or more years of undergraduate study for admission to law school?\u00a0 Why not three years of such study, or two or none, so long as an applicant passes a validated and reliable qualifying entrance exam and otherwise satisfies admission officials that s\/he is reasonably equipped for law studies?\u00a0 The history of the American legal profession has been in large measure a history of erecting ever higher barriers to entry into the profession and increasing the cost of entry has long been the principal tool of exclusion. What is the justification for the costly barriers to admission to the legal marketplace?\u00a0 These barriers have developed over a period of many years and have been with us now for so long that we tend to take them as “givens,” but quaere<\/em> whether some of them should be reexamined and perhaps modified or even torn down.<\/p>\n

Mr. Kindley argues, if I understand him correctly, that those who wish to “think deep thoughts about the law, and pay for the privilege” should of course be able to do so, but what is the justification for bundling courses aimed at probing what Professor Papke calls “the depth of the legal discourse\u00a0 and . . . its rich complexities”\u00a0 with courses that Mr. Kindley identifies as “preparing students for the actual practice of law”?\u00a0 He takes dead aim at Professor Papke’s assertion that “[w]e don’t want law school to be lawyer-training school.”\u00a0 Quaere<\/em> why not?\u00a0 With three years’ of tuition costs and average educational debt approaching $100,000 on top of opportunity costs, what is the justification for a curriculum that isn’t aimed at “preparing students for the actual practice of law”?<\/p>\n

I should acknowledge that I think that Marquette has done an excellent job in creating a curriculum that offers great opportunities, clinical and otherwise, to prepare for “the actual practice of law” as well as opportunities to probe “the depth of the legal discourse and . . . its rich complexities.”\u00a0 This is not to suggest, however, that our society would not benefit from a comprehensive and radical rethinking of the legal education industry.\u00a0\u00a0 After all, before President Bush and the last Congress provided a bailout to the financial services industry in 2008, they had to bail out (in a manner of speaking) college and professional school graduates from what was for many of them a crushing burden of educational debt.\u00a0 (College Cost Reduction and Access Act of 2007.)\u00a0\u00a0 In terms of legal education, would it not make sense to take a long hard look at methods of reducing costs?\u00a0 The tuition at MULS has increased by a factor of 26.95 since I matriculated in 1967.\u00a0 The CPI over the same period increased by a factor of 6.36.\u00a0 Thus, tuition increases more than quadrupled increases in the CPI.\u00a0 Is the educational experience today richer than it was in 1967?\u00a0 Without question.\u00a0 To acknowledge this truth, however, doesn’t address the issue of whether students who would prefer a less rich and less costly but nonetheless adequate and satisfactory educational experience ought to have opportunities to pursue it.<\/p>\n

Lastly, Mr. Kindley argues, pace<\/em> Professor Papke, that the legal profession “for better or worse does not depend on (high-falutin intellectual) pursuits.”\u00a0 Professor Papke may (or may not) consider Mr. Kindley’s comments to demonstrate the “sad bitterness and mean anti-intellectualism” to which Professor Papke referred in his first comment to Professor Slavin’s post.\u00a0\u00a0 For my part, the pointed exchange between the two gentlemen reminded me of the following:<\/p>\n

Since . . . it has been my intention to write something of use to the understanding reader it has seemed wiser to me to follow the real truth of the matter rather than what we imagine it to be.\u00a0 Imagination has created many principalities and republics that have never been seen or known to have any real existence; for how we live is so far different from how we ought to live that he who studies what ought to be done rather what is done will learn the way to his downfall rather than to his preservation.<\/p><\/blockquote>\n

Niccolo Machiavelli, The Prince<\/em>, ch. XV.<\/p>\n

\n

and<\/p>\n

\n

[L]aw was superb as a code.\u00a0 And the more perfect and logical a code was, the more magnificent it was.\u00a0 But this was at the cost of increased artificiality, rendering it less capable of existing in reality.\u00a0 Hence the opportunity to study and reflect on law offered the greatest satisfaction while the requirement to implement it was the saddest or most painful fate that could befall one.\u00a0 The practice of law led either to cynicism or madness.\u00a0 We could see examples of the former all around us and, as for the latter, suffice it to recall Kafka, who, though few realized it, was a Prague lawyer.<\/p><\/blockquote>\n

Ivan Klima, Judge on Trial<\/em> (A. G. Brain trans., 1993)<\/p>\n","protected":false},"excerpt":{"rendered":"

Last month, Jessica Slavin’s short post on “Things Law School Doesn’t Teach” caught my eye.\u00a0 Professor Slavin’s post linked to a public defenders’ blog in Connecticut which contained a list of “10 things I didn’t learn in law school,” a list seemingly assembled without a lot of thought, apparently just a bit of lighthearted fun. […]<\/p>\n","protected":false},"author":46,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[34],"tags":[],"class_list":["post-3577","post","type-post","status-publish","format-standard","hentry","category-legal-education","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/3577","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/46"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=3577"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/3577\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=3577"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=3577"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=3577"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}