The Laundry List of Irrelevant Subjects

By Eric J. Miller

Yesterday, I rejected the argument that academics are incapable of teaching practically useful subjects.  Today, I’ll reject the argument that teaching some laundry list of academic subjects is somehow impractical.

Before getting into the argument, I want to emphasize that my issue is not whether law school education is too expensive: it is.  Nor is it to come up with some explanation of how it got to be too expensive.  And I fully agree with, for example, Brian Tamanaha’s compelling explanation of the perverse and deeply troubling redistribution of wealth from least able to afford to most able to afford.  All I’m interested in here is whether the value of “academic” professors, and in particular, “academic” subjects, has been adequately accounted for in some of the literature.

Here’s how I understand the argument:

(1) The purpose of (particularly non-elite) law schools is to train lawyers in practice-relevant subjects

(2) Academics teach practice-irrelevant subjects.

(3) Practice-irrelevant subjects distract from training practice-ready lawyers;

(4) Therefore: academics distract from the purpose of training practice ready-lawyers

That means that they don’t belong in the law school, but rather with the rest of the academy; they should do their academic stuff on the main campus with the undergraduates, and not at the law school.

Brian Tamanaha is one of the folks who makes this type of argument.  In his telling, it has a couple of components.  First, he asserts a generalized form of (1), (2), and (3):

“Law students attend law school to learn how to become lawyers. Law professors are academics. The interests of the two main constituents of law schools are at odds owing to this difference in orientation.

Brian Z. Tamanaha, Failing Law Schools (2012).

Tamanaha states this as a fact: the last sentence is either true or false. It’s presented in categorical terms.  He bolsters his grand pronouncement by producing quantitative and qualitative data.  The loose quantitative proxy for practice irrelevance is the fact that practitioners, including judges, don’t cite most of what academics publish.  The dearth of citation is a loose proxy, Tamanaha believes, for lack of influence.  The qualitative proxy that bolsters the quantitative data is citations to two judges, Hon. Harry Edwards of the D.C. Circuit and Chief Justice Roberts of the United States Supreme Court, who dismiss most of what is published in law reviews as useless junk.  From this, we are supposed to conclude that the profession thinks that what academic professors teach is irrelevant.

There’s a leap here—professors teach what they write about—that is filled by the list of subjects Tamanaha identifies as practice-irrelevant.  Here’s his list:

“Theories of constitutional interpretation, normative arguments about what the law should be, legal philosophy, critical race theory, sociological studies of law, legal history, economic analysis of law, quantitative studies of judging—these and other perspectives on and about law are what occupy legal academics. Most of this is not immediately relevant to the daily tasks of judges and lawyers, although it may have direct and indirect benefits for the legal system more generally.” Brian Z. Tamanaha, Failing Law Schools (2012).

Now, there’s a problem here. “Not immediately relevant” does not mean irrelevant, nor does it mean of no interest or of conflicting interest to what students need for practice, nor does it mean unimportant.  It may be very (though not immediately) valuable.  Furthermore, Tamanaha’s test is so rigorous it seems to screen out skills classes along with the “academic” ones.  Some classes concerned with “the skills that will enable students to succeed as lawyers” may be “irrelevant for the daily tasks of judges and lawyers.” That’s because this “daily tasks” stuff depends on the class, the judges and the lawyers.  Evidence, trial advocacy, and so on are not immediately relevant for most lawyers, for most lawyers don’t see the inside of a courtroom.  Many students take these courses because they are immediately relevant for the bar, though not for practice.  Intriguingly, depending upon one’s area of practice, theories of constitutional interpretation may be “immediately relevant.”  Just think of the Crawford line of cases in evidence law.  And as I’ve argued elsewhere, sociological studies of the law may be essential for lower-court practice.

The reason why sociological and anthropological studies may be vital for the daily tasks is nicely exhibited by two studies of lower-level courts.  One I’ve flagged is the study by Fergus MacNeill and Cyrus Tata (among others) that showed that lower level court judges and lawyers read and used pre-sentence reports in ways that promoted quick plea agreements and aggregate sentencing.  The study had plenty of useful information to make the daily practice of law by lower-court judge and advocates more fair and more effective (the two are not the same).  Most importantly, the study showed that the lawyers, judges, and social workers drafting and using the presentence reports routinely misunderstood each other and perhaps themselves.  In this case, asking one or other of the practitioners would have provided a mistaken view of the practice.  So good academic stuff can provide good insights into the practice of law.  And this stuff is useful in putting into practice the skills of advocacy and client contact required in these settings.

Furthermore, these studies are not likely to be cited even if the judges read them unless the judge actually publishes.  Elite judges in federal courts and courts of appeal publish.  Many—most—judges (particularly those in lower-level state courts) don’t.  And some areas of their practice are less publication friendly than others (pre- and post-trial release and revocation decisions, for example).  So Tamanaha adopts an elite standard—the doctrine used in the D.C. Circuit and the Supreme Court—and takes that as a proxy for everyone else.

If he came down to earth, he’d see that a bunch of judges cite and discuss sociological studies and quantitative (and qualitative) studies of judging.  For example, New York Chief Judge Judith S. Kaye set up the Center for Court Innovation (CCI) to better equip New York problem-solving courts with data to determine what works to treat offenders in this style of court.  One purpose of CCI is to convene colloquia of practitioners, policymakers and academics to examine problem-solving courts so as to educate each other on the operation of the courts, and to improve the services they deliver.  CCI, for example, commissioned sociologist Jeffrey Fagan and anthropologist Victoria Malkin to examine the Red Hook Community Justice Center, a flagship problem-solving court in Brooklyn, New York.  The results of that study have proved controversial, but influential.

CCI is educating judges around the country, and indeed around the world.  They recently made a presentation to the Scottish judiciary, along with some problem-solving judges and a bunch of academics (including Cyrus Tata and myself).  Two features of this experience are suggestive: first, why would we suppose that law reviews and so citations to law reviews are the location at which judges and practitioners get their information on the law?  The pipeline is more lengthy and mediated than that.  So it’s possible to have a direct effect without citation.  Second, if we want to know what is important for, e.g., judges in in medium to low-level practice in state courts, why would we consult the higher levels of the federal judiciary?

It turns out that in many courts, including problem-solving courts, the judges just are more interested quantitative studies of judging.  As a brief perusal of the National Association of Drug Court Professionals publications page makes clear, problem-solving court judges are obsessed with themselves and their output (dealing with offenders) as part of an experimentalist institution.  The same goes for the Missouri State version of the association (these courts are strongly supported by the last two Chief Justices of the Missouri Supreme Court).

Or take Judge Peggy Hora, who, when working in California State Court, adopted therapeutic David Wexler and Bruce Winnick’s work on therapeutic jurisprudence (TJ) into the problem-solving courts, where it is the dominant legal philosophy; (another influential judge is former Judge Jeffrey Tauber).  These, and other, judges also draw often and expressly on Wexler and Winnick, and more recently Tom Tyler’s work, as well as a bunch of other “academics.”  And they publish as “academics” themselves.  They share articles and insights on the TJ listserve, and the NADCP arranges conferences and colloquia that these judges and practitioners attend.  The scholarship they consume is varied and eclectic: much is driven by some really excellent and innovative work coming out of legal clinics; but much is driven by the work of psychologists, sociologists, criminologists, social workers, and even legal theorists—all the “law and” stuff that supposedly fails the “daily tasks” criterion.  In these courts (and in the evidence-based field of the sentencing more generally) judges want data to evaluate their daily tasks, and theories to help explain and improve them.  Opining, in categorical fashion, that these subject areas are not immediately relevant, and implying that they are thereby less valuable, is just a bad ethnography of the academy and these courts.

The problem is that the usual suspects—Harry Edwards and John Roberts—are elite federal judges who do not themselves practice in the sorts of courts that non-elite lawyers are likely to inhabit.  Problem-solving court judges, and legislatures considering what to do about prison overcrowding and seeking non-incarcerative, community-based solutions, do engage with this sort of scholarship.  Again, however, the elitist standards of academic influence over practical and judicial decision-making overlook low-level courts, where judges do not cite articles in opinions—because they are not writing opinions, and the people writing many of the articles *are the people practicing in the courts*, and are seeking to influence others engaged in similar practice.

As an aside, the articles produced by clinical faculty have opened up both problem-solving courts and holistic practice more generally.  Yet this scholarship is presented as a bad thing.  Tamanaha dissaprovingly notes that: “Drawn by its gravitation pull, the designated and avowed Hessian trainers on law faculties are themselves morphing into scholars.” Brian Z. Tamanaha, Failing Law Schools (2012).  Yet this scholarship is plausibly read and discussed by more judges and practitioners than the high-end and narrowly “doctrinal” stuff pumped out for consumption by discombobulated law clerks looking for some secondary source that can summarize the law so they can sound competent before their federal or appellate judges (or before some white-shoe law firm partner)].

I also find singling out critical-race theory rather troubling, given that the point of the course is often to help marginalized communities make sense of law school and their place in the profession.  Much of critical race theory is obsessively practice based: Derrick Bell famously kicked off the discipline by asking: do cause lawyers ignore their clients’ best interests in favor of making an argument?  (Note, the argument is that about subject matter, so the fact that Bell was a practitioner-academic is grist to my mill).  Much of the current work by, for example, Devon Carbado and Mitu Gulati asks: what are the ways in which law firms engage in discrimination and how can we make it better? These just *are* daily tasks that occupy lawyers.  So much—though certainly not all—of CRT passes Tamanaha’s test.

But even if a professor teaches nothing but (supposedly) abstract ideas of subordination: a class that is at its core focused on cultural competence addresses one of the most pressing needs in the curriculum, and especially one that low-end practice requires.  Too often, the core classes (and sometimes the skills ones too) dismiss as irrelevant the features of race and gender, or power and subordination, that students raise and that that clients experience.  So if we’re going to have students think outside the box to engage with the sorts of clients the traditional law firm overlooks, then how better to train students do so than to identify with those clients.

Here’s a couple of examples, close to home, of how that works.  Thomas Harvey, a former student of mine, along with Michael John Voss and John McAnnar created a nonprofit law firm, ArchCity Defenders, to provide holistic legal services to individuals, mostly homeless, facing state prosecution.  They were working without local exemplars, in part because state law separates the civil and criminal legal services provided to indigent defendants, and many fall through the cracks.  Thomas recently addressed the AALS about what inspired him to set up ArchCity, and pointed directly to his critical race class and the law school’s clinic.  Why?  Because the combination of reflection and practice enabled him to think about social justice in ways that simply are not available through the traditional course offerings and local externships.  In particular, Sue McGraugh at our clinic has been championing interdisciplinary practice for years.

Similarly, two other former students, Nicole Cortes and Jessica Mayo, were in my race relations law class, as well as their immigration law clinic.  On graduation, they set up the Migrant and Immigrant Community Action Project (MICA Project): a community organization committed to working with low-income immigrants to overcome barriers to justice. The MICA Project utilizes legal services, organization, advocacy, and education to promote the voice and human dignity of immigrant communities.  The combination of clinical and social justice perspectives were, so they tell me, vital in thinking about how to engage with a woefully underserved community in the city of Saint Louis.

What both sets of former students—one group from Saint Louis University, one group from Washington University—have in common is an emphasis on holistic legal practice.  Holism is by definition interdisciplinary.  It seeks to provide comprehensive legal *and* social services.  It is, one judge has suggested, the future of legal practice in the 21st century.  Slaps at courses that encourage quantitative, qualitative, and ethical reflection on legal practice as unconcerned with the daily tasks of lawyering and judging just seems a little last-century.  Alternatively, it seems to imply a form of legal practice that is unconcerned with the workplace, and obsessed with the sort of product consumed in elite spaces: the D.C federal circuit and the Supreme Court, or other citation locations valued by—ironically enough—academics.  This is a unitary model of legal practice that fails to account for the plural nature of the current profession.

There is much about Professor Tamanaha’s book that I admire.  I think that is description of the perverse economics of law school is spot on.  I agree that law schools are too expensive to adequately serve undervalued communities.  The ArchCity Defenders work two jobs: their daily work (solo practice and large law firms) and the huge amount of time they devote to their pro-bono work.  I agree wholeheartedly that we should be making it financially possible for many—most—over our students to engage in this sort of work.  Let me reiterate: law school is too expensive.  And some of the stuff that is taught in law school (as in any department of the university) may not be that good.  The question is whether these subjects are necessarily too academic, meaning that they undermine the interests of our students.

Attacking a laundry list of subjects based on little more than one person’s opinion, and certainly without any data—quantitative or qualitative—about what is taught in those classrooms is at best speculative and at worst misrepresents the value of those subjects.  It’s allied to an argument that fairly straightforwardly implies they hurt the interests of our students.  That is a powerful argument, but it’s wrong.

This article was originally published by PrawfsBlawg.com on 2/15/13.  Read it here.