Take it From Me: Elites Just Don’t Understand


"I can't teach you how to write a pleading that will survive a MTD -- I need to finish my forthcoming Article entitled 'No Backsies: The Common Law Origins of Playground Tag Rules.'"

Marc likes to post about the worthlessness of legal education yet never outright addresses the underlying reason it is worthless.  The reason is simple:  Legal academia is run by and large by the elite.  And the elite (for the most part) are completely worthless as lawyers.  Here’s why:

Elites are beholden to hierarchical power structures

For a profession that is supposed to champion egalitarianism and free expression of ideas, I have never met so many who are unwilling to challenge accepted power structures.  Associate.  Assistant. Professor.  Emeritus.  The inherent idea behind these titles is that you can use them as shorthand for whose ideas are better than others.  I love the disdain that rolls of the tongues of the tenured when they say “Oh, you mean that skills professor.”  How many times did you hear adjunct used as an epithet, Marc?  I bet a lot.  “You’re the new adjunct professor, eh?”

Elites are pussies

Remember in law school, where the elite professors and students banded together for a cause and took a stand on something unjust?  Yeah, I don’t either.   That’s because elites hate to take positions.  Taking a position means that you care about something.  And elites think that caring about something is a sign of weakness.  Remember the people who took positions in law school?  Yeah, they were the non-elites.  The kids who had nothing to lose by caring about something.  The elites were the ones calling an actuary before deciding whether to wipe their ass.

Case in point:  I had a friend (elites would call this person a colleague) at another law school that recently discovered outrageous plagiarism in a professor-submitted article they were editing for a student-run journal.  When the board brought the plagiarism to their school’s administration, the amount of absolute deference given to the professor was stunning.   One remedy the board suggested was informing the professor’s home institution of their findings and forwarding the evidence along.  Needless to say this was shot down as the elites circled the wagons.  The editorial board was also instructed to not name and shame the professor.  So, the end result is that this professor is free to submit their work to another journal.  A student would be expelled.  A professor protected.  Typical elite behavior.

Last example — in recommending that JD graduates seek a PhD if they want to enter the legal academy, Dave Hoffman comments that “these considerations intentionally ignore the important question — is this a good thing, or a bad thing, for legal education.  I don’t have a thing to say about that big question which is both novel and interesting.”  First of all, having nothing novel or interesting to say is par for the course among legal academics, so don’t beat yourself up over it.  Second, it just highlights that law professors hate to expose their views.  Hoffman went so far to let everyone know that he was actually not taking a position, that he led his defense by insulting Marc in the commentsMarc retorted by telling Hoffman to shit in his hat. Beautiful.

So here’s the difference between elites and non-elites — we can take positions on things!  See – requiring a PhD in addition to a JD is bad for law schools and law students.  It only furthers the class divide in legal academia, which will likely be extracted from students in their tuition as JD/PhD’s demand more compensation to cover their investment.  I didn’t just explode.  Neat!

Elites only care about informing others of their elite status and not the substance of their work.

I sit on the editorial board of a journal at Michigan and accordingly receive article submissions from law professors.  I can immediately tell the difference between an article sent by an elite and one sent by a non-elite / practitioner.  And it has nothing to do with the merit of the article.    See — in addition to their article (including the useless star (*) footnote, where law professors casually name drop the school they teach at and/or the law school they graduated from), the elites will send a fifty page CV that includes seventy rehashes of their one article in book chapters, presentations, and blogs along with every award they have ever received, including the time they won the jump rope contest at the Westhampton Academy for the Ethical Education of the Gifted, Talented, and Well-Dressed.   Oh, yeah.  And a one paragraph abstract written by their research assistant.  Note to law professors:  clean the meta-data before you submit your articles.

So given the above characteristics of the elite, it should be no surprise that they aren’t very good at teaching law students how to actually be lawyers.  Besides, if forced to teach – shudder – a skills class, elites would have less time to focus on real doctrinal classes, like say “Bloodfeuds,” “Fakin’ It,” or “Moral Order and the Irrational: Freud and Nietzsche.”

Legal academia is focused on serving these elites and everything else is secondary.  And in a system where skills (read: practical) classes are taught by professors uniformly cast by the tenured as second-class citizens, it sends a clear message to law students:  You don’t need to know how to do this menial work — that’s what law firms and their respective clients are for.  It’s no wonder clients are so pissed at first year billing rates.

The institutionalism of this goes beyond the tenure / non-tenure distinction.  At most schools, research, writing, and drafting classes are graded on a mandatory pass / fail basis whereas doctrinal classes are graded on a curve.  News flash:  Most law students put in the bare minimum amount of work into what is the foundation of the rest of their career.

I worked exceptionally hard in these classes because I want to do good work for clients one day.  While I find the “brain candy” of law school to be intellectually stimulating, perhaps it is my non-elite background that reminds me that one day I’ll need to put bread on the table for my wife and me.  What is clear is that for law professors, because of their elite background, this motivation never occurs to them.

As much as I am sure law firms and clients are delighted by a lawyer’s command of “The Law and Baseball” (a real course), I’m pretty sure they would much rather their lawyers are able to research relevant legal authorities and provide practical legal advice about their problems.  Elite professors simply don’t understand this, nor do they care to.  A life of privilege will do that to you.

31 Responses to Take it From Me: Elites Just Don’t Understand

  1. I love the post… I kinda hate the word “elites” though. It makes it sound like they are actually something special. I mean, everyone is special I suppose…. but I prefer to use the term “circle jerk”.

    Nevertheless, fine writing. You have large chram.

    • Harry D. Mauron says:

      Once you spend a few hours playing Halo, “elites” takes on a whole different sense (that happens to be nicely metaphorical for the post).

  2. shg says:

    Randazza just prefers circle jerks to, well, pretty much anything. Great post Harbin. You have a bright future ahead of you.

  3. dssinc says:

    Word.

    It took two years of grinding through the doctrinal classes — bullshit and otherwise — before finally discovering the joy of lawyering via the school legal aid clinic.

    Real clients, real problems, real courts, real adversaries, and real judges. Opposing counsel just moved to dismiss as a matter of law…it takes him 90-120 seconds to make his argument. The judge turns a steely eye towards you and simply says: “Counselor?” Yeah, here’s where the rubber hits the road, and it’s got winks to do with doctrine.

    Thanks be for the practical (prerequisite) courses that left me prepared to belly up to the bar and make the case to move forward. Window open, window closed…on with the trial!

    Nice post.

  4. Anonymous says:

    I love fact-free arguments.

  5. Sahri says:

    Excellent, insightful commentary. I would look forward to seeing you produce one day a commentary on the circle jerk that is the “top-tier” law firm establishment.

  6. hawkhead says:

    I want to know what schools people are going to that no one has any practical experience that’s meaningful. I went to an “elite” school, and my environmental law professor had 20 years of private and government experience (including a stint as General Counsel of the EPA) before entering academia; my employment law professor spent 7 years in private and government practice doing L&E law before becoming a professor; and my 4th Amendment professor spent 8 years as a prosecutor for DOJ.

    • That must have been a great experience!

      • hawkhead says:

        Indeed it was. My two environmental law classes especially (in addition to the lecture, he co-taught a seminar that was essentially “environmental law practice” with three canned, month-long assignments that split the class up into attorneys advocating for one side or the other), sicne we got not only the obvious benefits of practice knowledge, but the fun “inside baseball”-type stuff that came with the high-level government experience.

  7. rick says:

    Can I just point out that the elites are crappy writers? For instance:

    “I don’t have a thing to say about that big question which is both novel and interesting.”

    Note that in standard English syntax, the subordinate clause in this sentence modifies “question.” If he thinks that the “question” of whether PhDs should or should not take a shit in their hats is novel, he has been living on another planet. If, on the other hand, he meant to say that he had nothing novel to say, he put his subordinate clause in the wrong place.

    Aren’t lawyers supposed to be super-precise about this kind of stuff? Oh yeah, he doesn’t practice.

  8. Andrew says:

    This post (and the ones alluded to in the post) dealing with poor legal education raises a question: Where do you find a quality legal education?

    If someone wants to pursue law to become a practitioner how does he overcome the “bullshit factor” to figure out which law school provides the best practical skills? Surely not all law schools leave graduates unprepared for private practice, right?

    • I’d say that the Massachusetts School of Law, in Andover, MA, would be a good place to start looking. I’m sure that there are others that are just as good… but at least Mass School of Law does not fellate the ABA every year by hiring unqualified fuckheads. It uses mostly adjuncts.

      • Andrew says:

        Thanks! I’m in the process of researching law schools so I’ll add that one to the list.

      • Dave Heal says:

        Given the profession’s obsession with prestige and whatnot, I wonder whether a better recommendation might be the usual “go to the best school you get into, within financial reason” coupled with seeking out any and all opportunities to do real lawyering while you’re there. Do repeated work with clinics, do an externship, etc. That way you come out of school with some actual skills but also aren’t hamstrung by people’s prejudices about so-called “regional schools.” You have to fight your way through a ton of bullshit if you come from a school that isn’t name brand and you haven’t done extraordinarily well there, so I’m not sure doing completely avoiding ABA-fellaters is the best way to get ahead while also learning stuff.

        • David,

          You’re certainly right. The MSL grad with great training will likely not get an interview, while the GULC graduate with shit training will get the interview… unless the prevailing attitude toward “prestige” changes.

  9. Dave Heal says:

    To be fair (on a completely trivial point), “The Law and Baseball” is a class in the same way that my buddies who went to Oberlin could take a one-credit student-taught class about female sexual anatomy that involved an upperclass(wo-)man spreading her legs before a bunch of wide-eyed teenage dudes in an attempt to show them her cervix. And they also had a class about Phish. But I guess that wasn’t at professional school, either. So, yeah, kind of a joke, but I think the one-credit mini-seminars are worth having and are one of the few law school offerings that is honest about being useless.

    Great post, Chris. I’m proud to have sat next to you in probably the most batshit class I took in law school (pending next semester’s results).

    Oh, yeah, and I actually wrote something in a similar vein for our student rag after reading one of Marc’s more thorough eviscerations of legal education:

    http://www.theresgestae.com/2009/04/law-school-now-with-less-law.html

    • Christopher Harbin says:

      Great post on the res, Dave. I’m not sure how I missed that one. Fantastic writing.

      That class has been my most ridiculous one to date. A particular standout moment was the impromptu reading of metaphors straight from Wikipedia on naked short selling in response to a cold call. I think a class on Phish would have been more fulfilling and useful.

      I might pooh-pooh those one credit seminars now, but I just happen to be one credit short for graduation, so I might have a change of heart real soon. It’s either that or try to sucker some professor into sponsoring me for an independent study. How about one credit for a twenty page paper entitled: “Careful Who You Call a Ninja Looter: An Analysis into the Reputational Interests of MMORPG Characters”? It could be the start of a long and prestigious career in the academy! I should start learning to eat Brie!

  10. Look, I don’t disagree that there are problems in how law is taught, not to mention how it is priced (it’s unconscionable that students graduate with so much debt). But students have got to take responsibility for their own education. If your legal writing class is pass/fail, no one forces you to put in minimal time. Likewise, as this recent post by Rick Klau of Google notes, law school offers opportunities for entrepreneurship in the most unlikely of places:

    http://tins.rklau.com/2009/11/university-of-richmond-law-school.html

    In Klau’s case, he started a law journal which put him on the road to a future as an entrepreneurial lawyer.

    • Dave Heal says:

      No one forces you to put in minimal time, but b/c that two-semester legal writing class (at least here at Michigan) doesn’t factor into your GPA, and therefore into your ability to impress a guy in a suit at a job interview the following fall, the incentives are pretty clearly established. At the end of your 1L fall when you’ve got a memo due and the rest of your class is frantically writing outlines that are 1/5 the size of the textbook, it’s tough to get people to prioritize Bluebook citations over studying for exams that actually matter. At Michigan at least I don’t know why they don’t make Legal Practice a graded subject and get rid of the “mandatory elective” that pushes second semester 1Ls above the normal 16-credit ceiling. It’s bonkers to think 1Ls need MORE work to do and shouldn’t maybe be focusing on raising/maintaining their grades or finding opportunities outside the law school that don’t involve enormous red books.

      And Rick Klau is certainly a good example of someone who did something interesting and innovative within the confines of the legal education. But simply b/c there is still some small amount of room for creative thinking doesn’t mean that the environment is productive or healthy or actually good for training entrepreneurial thinking. Rick Klau is actually an example of someone who succeeded despite the nature of his legal education, not b/c of it. Maybe there’s something in that 9-minute video that isn’t the same boilerplate you can find at every law school, but I’m not aware of Richmond being any different than anywhere else.

    • Christopher Harbin says:

      I can’t disagree more. You can’t pin this all on the law students. Law students are acting in their immediate best interest, especially because first-year performance sets the trajectory for their career. They shift their effort to their doctrinal classes that are graded on curve because the system punishes them if they don’t. Get bad grades = unemployable. So your choice is put effort into something useful and live in a van down by the river or put your effort into something less useful so that one day you can, you know, eat.

      Even so, at most schools there aren’t even enough course selections with practical applicability for a student to even make that choice. Don’t get me wrong, I like doctrinal classes too, but some are so esoteric and useless to a practitioner AND they are offered in lieu of these courses.

      And the thrust of the whole kit-and-kaboodle is that teaching the nuts and bolts of the profession is beneath the elites. It doesn’t tickle their intellectual curiosities and so law students can jog on about it.

      Here’s law prof David Papske’s take on it — “Too many lawyers have a sad bitterness and mean anti-intellectualism about them. Maybe living in debt and working in the context of hierarchy and bureaucracy produces those attitudes. I wish somehow that lawyers could remember law school as a demanding but enriching academic experience.”

      Perhaps students wouldn’t live in such debt if they didn’t have to take out six figures in debt to pay professors to teach “Law and Popular Culture” or write such useful academic commentary as “Mr. District Attorney: The Prosecutor During the Golden Age of Radio.” If law professors were forced to fund their research through grants like hard science professors, most of them would starve to death.

      And getting out of that debt surely isn’t going to be helped by the fact that the elites don’t want to teach you how to be useful to a client, because fuck man, they’d just never get that smell off of their brie eating fingers.

    • Carolyn,

      I agree that we should, in part, blame the students. After all, they are the ones who made the decision to buy the garbage education that was sold to them. They took out the loans.

      I think we should also blame the gambler when he loses his life savings at the casino. And, we should blame the shit heads who took out adjustable rate mortgages on condominiums in Florida. But that doesn’t change the fact that the casinos are crooked as were the bankers.

      And as an overarching principle, we expect law schools to have something called “ethics,” which we do not expect from our casinos and our mortgage brokers.

      Sure, you could start a law journal in law school — which truly is doing what? Contributing yet another worthless publication so that more worthless professors can submit worthless bodies of worthless work so that worthless students can check their worthless footnotes.

      I don’t 100% agree with Harbin’s post… just because I don;t think the concept of “elites” is well defined. But, ultimately, the law school game is about preserving privilege, and the hacks who teach the classes are as much to blame as any 22 year old who bought in to the bill of goods when he signed the loan papers.

      If this were a just world, the students would rise up and hack the heads off of 90% of the law school professors, leaving them on spikes outside the campus as a warning to the next piece of shit who thinks that a yale degree and a few articles on “the imperialism of international dispute resolution over bisexual vegan gout victims” qualifies them to teach contracts.

      • Christopher Harbin says:

        When I talk about academic elites, I’m talking about those born into privilege and their associated sense of entitlement. The products of a system of prep schools, admissions services, standardized test tutors culminating with educations at Ivy institutions where they’re told countless times that they are indeed the best and the brightest. There they are taught to use school names as a proxy for the merit of one’s ideas. And it’s only going to get worse, as the participation trophy generation are making the way out of schools. How long until a tenure committee gets a phone call from a concerned helicopter parent?

        Undoubtedly this leaves many of them simply incapable of understanding things outside of their reality-distortion field. Take for example, a law professor I know that laments that they must explain their attendance at a top public law school instead of the usual suspects even after twenty years of teaching and publishing exceptionally influential scholarly works.

  11. […]  Swaths of the country have limited or no access to high-speed internet, a reality lost on the elites.  Increasing the ISPs’ costs of doing business with unsophisticated consumers will obstruct the […]

  12. […] Marco & Co. do it regularly enough that I don’t have to.  (See here, here, and here.)  On the whole, my law school experience was a good one.  I took as much advantage of […]

  13. wow, these comments echo with my experiences so much! In my 1L writing class, everyone in the class thought the defendant had a better argument, but the old professor thought otherwise based on a blatently confused reading of teh statute and the cases (even confusing the order of the court in one of the two cases). So everyone but me ended up changing their positions to appease her. Law school was the most hierarchical environment I have ever been in, by far.

  14. […] Marco & Co. do it regularly enough that I don’t have to.  (See here, here, and here.)  On the whole, my law school experience was a good one.  I took as much advantage of […]

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