This title of this post implies that law schools are underperforming. I don’t want to concede the point, though I am willing to grant it temporarily in service of a good discussion. If we are going to have that discussion, however, we should get an accurate diagnosis of the problem.

In his post on PrawfsBlawg, republished here on Bloggingheads, J.B. Ruhl contests the diagnosis offered by Paul Lippe: in a nutshell, “law graduates don’t acquire client-marketable skills, since so many law faculty don’t care much about the practice of law.”

Lippe espouses a view that is a widely held by practicing lawyers, and I have some sympathy for this critique. When I was interviewing for teaching jobs 15 years ago, I offered similar views. My practice experience at Skadden was a baptism by fire, and I didn’t want my students to have the same experience. So I told those who would listen to me that we should introduce a “transactional approach” to the classroom. At that time, many of us were inspired by Ronald Gilson’s famous article, Value Creation by Business Lawyers: Legal Skills and Asset Pricing, 94 Yale L.J. 239 (1984), and by the AALS Workshop on the Transactional Approach to Law, held on October 13-15, 1994. Over the years, the transactional approach has spread through law schools, and this summer a bunch of us who teach and write about transactions gathered in Long Beach for the AALS Workshop on Transactional Law.

Of course, this is only my little corner of the legal education universe, but it is typical of many innovations in law teaching over the past few decades that give law students are more realistic encounter with law practice. The proliferation of clinics, including business clinics, and externship programs are the most visible encroachment of skills training into the traditional law school. But we have also changed our teaching materials, relying more heavily on problems and case studies, and our curriculum, adding many innovative courses taught by tenure track and adjunct professors. Thus, after spending the last 15 years on this side of the podium at six different law schools, I believe that Lippe’s diagnosis is completely wrong. Most law faculty do care about the practice of law, and we are changing legal education to be more responsive to the demands of the market. (For a recent example of such efforts, see Dean Joanne Epps’ column about Temple’s law school in today’s National Law Journal.)

So if legal education falls short and the problem is not lack of faculty interest, what is the problem? Surely, part of the problem is the unrealistic standards imposed by law school critics. As noted by Professor Ruhl, we cannot realistically expect law schools to produce “fully functioning lawyers,” and critics who use that as a standard are bound to be disappointed with our graduates.

Even a less lofty standard, however, might result in disappointment. The Carnegie Report correctly concluded that law schools excel at teaching analytical skills, and in my experience, most legal employers value this training. Nevertheless, law schools probably fall short in teaching other skills relating to problem-solving, counseling, and advocacy for real-world clients. This is the core of the problem for most law school critics. They simply want law schools to do more, to go beyond what law schools have traditionally done well and teach other skills. Of course, this desire raises the nagging problem of opportunity costs: “More this and more that inevitably means less of something else.”

Now, at least, we can have an intelligent conversation. If you want law schools to teach more skills, what are you willing to give up? To his credit, Paul Lippe is willing to name his sacrifice: instruction in substantive law. See my earlier post and some wonderful discussion on this topic here. In my view, this sacrifice is largely unnecessary and probably counterproductive. But I will say more about that in a subsequent post.