Congressman John Dingell, D-Dearborn, once said at a congressional hearing, “I’ll let you write the substance … and you let me write the procedure, and I’ll screw you every time.”
Recognizing that procedure does indeed matter, PublicSquare.net asked Ms. Caroline Mitchell and me to debate the merits of the Supreme Court’s recent cases that change the standard for drafting a satisfactory complaint in federal court (i.e., the document that starts a lawsuit by laying out the basis for the plaintiff’s claim against the defendant). I would like to thank the folks at PublicSquare.net for hosting this discussion and Ms. Mitchell for participating. In this first post, I begin with an introduction to the issue. In my next post, I will offer my critique of the new regime.
From the middle of the nineteenth century until the end of the 1930s, plaintiffs in drafting complaints were required to provide a great amount of factual detail in order to satisfy the then-prevailing pleading standards. This fact-intensive scheme led to two main difficulties: (1) Courts and parties spent an inordinate amount of time, money and energy determining how much detail was required in the complaint and distinguishing “facts” from “legal” conclusions. Moreover, none of this effort was expended on the underlying merits of the claim, but rather on satisfying a procedural hurdle. (2) As Congress and state legislatures passed more complicated legislation, creating claims to address more nuanced injuries than common-law battery (or the like), plaintiffs found themselves unable to acquire the facts needed to plead a fact-intensive complaint successfully without the coercive power of a court to compel the opposing party to release the relevant information.
In 1937, the federal rules of procedure were radically reworked, creating the still-governing Federal Rules of Civil Procedure. Among other things, the drafters of the Federal Rules sought to address the difficulties outlined above. They drafted two rules that directly address this issue. First, they rejected fact-intensive pleading for a “notice” pleading scheme under Rule 8(a)(2).1   Instead of requiring plaintiffs to provide a detailed factual account of the injury of which they are complaining, the Federal Rules only require plaintiffs to put the defendant on notice of the nature of the complaint being brought. Second, a failure to satisfy this low standard, may be addressed by a pre-answer motion (the answer is the document the defendant files to respond to the complaint) under Federal Rule 12(b)(6). Factual detail, under this scheme, is to be developed in a later stage of the litigation process called discovery.
This mere notice standard for complaints was affirmed by the Supreme Court in Conley v. Gibson, 355 U.S. 41, 46-47 (1957). Here the Court held that “complaint should not be dismissed . . . [for failure to comport with Rule 8(a)(2)] unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Thus, the Court ruled that a complaint was merely a vehicle to put the defendant upon notice of a suit—not an opportunity to adjudge the veracity of plaintiff’s underlying factual assertions. Put more concretely, under this standard, courts (only during this early, pre-discovery period) were to assume facts stated in a complaint are true and allow a plaintiff to draw any possible inferences from these allegations. This approach to pleading had come to govern, not only in the federal system, but in 35 state systems as well. Moreover, the Court reiterated this Conley holding upon numerous occasions until two years ago.2
The Court’s 2007 Bell Atlantic Corp. v. Twombly changed these, by then, well-settled rules for pleading. 127 S. Ct. 1955 (2007). The plaintiffs in Twombly brought federal anti-trust claims against several local providers of telephone and Internet service. The plaintiffs’ theory of the case, as required under the Sherman Act, was that the telephone companies had conspired with each other not to compete, thereby creating monopoly pricing power in the each company’s local market. The relevant part of the plaintiffs’ complaint merely alleged that the companies pricing packages tended to parallel each others. From this the plaintiffs’ sought the legal conclusion that the defendants had conspired to set prices by way of inference. Justice Souter, writing for the Court, rejected this complaint as implausible. The Court hewed to the traditional standard of assuming the facts alleged as true. Here, the fact of parallel pricing conduct. But the Court rejected the Conley standard of allowing a plaintiff the benefit of any conceivable inference. Rather, the Court held that inferences must be plausible. Here, the Court found the inference from parallel conduct to conspiracy implausible. Thus, the Court required the plaintiffs to plead the conspiracy with specific facts.
Building upon Twombly, last spring the Court issued Ashcroft v. Iqbal.129 S.Ct. 1937 (2009).Here federal authorities arrested Mr. Iqbal, an Arab Muslim, after the 9/11 attacks. After his release and deportation to Pakistan, Mr. Iqbal sued senior Department of Justice officials contending that he was arrested solely on the basis of his race and religion. Such allegations, if true, would constitute significant constitutional violations and would justify an award of monetary damages for Mr. Iqbal. The Court, speaking through Justice Kennedy, agreed that Mr. Iqbal’s “allegations are consistent with … [his designation as a person] ‘of high interest’ because of [his] race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose.” That is, the Court relied upon the Twombly plausibility holding to rule that it did not believe Mr. Iqbal’s preliminary allegations. This holding drew a vigorous dissent from Justice Souter, the author of Twombly. Under Iqbal, Justice Souter complained, not only is plaintiff not entitled to all conceivable inferences from his allegations (per Twombly), but the courts need not assume his factual averments to be true. A step too far in his view.
This is where we stand then. Under the pre-2007 regime, plaintiffs needed only to put a defendant upon notice of the claim against it. Plaintiffs were entitled to an assumption (during pre-discovery motions) that their allegations were true and inferences from these allegations were true. Under Iqbal, neither of these assumptions continue to govern pre-discovery Rule 12(b)(6) motions.

1Fed. R. Civ. P. 8(a)(a) (“A pleading that states a claim for relief must contain . . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”).

2 See, e.g, Erickson v. Pardus, 551 U.S. 89 (2007); Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002);  Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993).

I’ll take one more go at this.

There is nothing in the statute which prohibits any human being from making any political comment.  If Warren Buffett or George Soros or Ross Perot or Donald Trump or any other person with the resources to do it wants to run an ad or a movie, they’re obviously permitted to do so under the First Amendment.   Nothing that I can see in the statute would prohibit an individual from producing a movie and renting out a theater to show it, either.

I hate slippery slope arguments, but the issue of corporate personhood has been taken to such extremes (note that Rehnquist dissented in Belotti along with Brennan, Marshall, and White) that it’s important to point out that:

- People have limited lifespans.  Corporations don’t.   I think I’m safe in saying that every human being on Fortune’s 500 list will be dead in 120 years.  It’s a reasonable bet that at least 20% of the corporations on the corporate list will still exist in some form.

- People have the right to vote.  Corporations don’t.   I haven’t yet come across anyone arguing that any 18-year-old corporation should be able to cast a ballot, but it’s really not a far leap from free speech to the vote.  (As a sci-fi buff, I’ll also make a prediction that in my lifetime– I’m 37– the SCOTUS is going to have to make a decision on the personhood of an Artificial Intelligence program.  I hope I’m still young enough to see that argument.)

- Even such fundamental rights as equal protection do not fully apply to corporations.  Otherwise the corporate income tax would be held unconstitutional for its different rates and different scope of deductions.

- Corporations, at least in Delaware and Nevada, grant their privately held owners a degree of anonymity that in and of itself is incompatible with modern campaign finance law.  How do you know that each individual shareholder of a corporation is even legally entitled to make a contribution?  I’ve brought this up a couple of times, but it’s a really serious problem, even in the case of nonprofits.  People who are interested in the Second Amendment may be aware that there was actually something of a coup in the leadership of the NRA about 20 years back (on the surface, it may have seemed not much more than a move from Washington DC to the Outer Beltway, but the positions the organization took changed, sometimes dramatically).  What’s the remedy if a dues-paying member, or even a strong minority of dues-paying members, disagrees with the position espoused?

(I should point out that it sometimes seems that 2/3 of what I do during campaigns is write nice letters to would-be donors enclosing uncashed checks that used their corporate or LLC checkbooks by mistake or by ignorance– once I had to write such a letter to the candidate’s daughter, who naturally was not amused.)

As a history nitpicker, I’ll point out that the 1907 Tillman Act is actually almost entirely in sync with modern corporate law.  In 1907, New Jersey and Delaware were still in the race to the bottom for the most lenient corporate laws.  While some other states, like my native Pennsylvania, still required an act of the legislature to form a corporation in 1907, Delaware at least did not.  (New Jersey let Delaware win the race when a liberal do-gooder named Woodrow Wilson got elected governor and got stricter corporate laws passed.)  (I’ll also digress a bit further and state that in 1907 in Pennsylvania, any corporation was entitled to form its own police force, with full powers of armament, arrest, and detention.  These coal and iron police, as they were called, existed until the Great Depression.  But even if you were, say, a corporate grocery, you were entitled to a police force with guns and badges and the whole works.)

Finally, and I think I’m probably on my weakest ground here, since using foreign law, even for comparison, has become a bugaboo, I’d like to direct my fellow Americans’ attention to what’s been going on in Italy for the last few years.   Faced with the problem that Silvio Berlusconi owns all the private network TV stations and most of the newspapers, and with the corollary problem that his opposition would have to pay Berlusconi for airtime to run anti-Berlusconi ads, Italy in its last election simply outlawed TV political advertising.  Whether it made much of an impact on the outcome of the election, it’s hard to say (Berlusconi’s TV news programs are like something out of Orwell– light years beyond the worst things that liberals think about Fox News or conservatives think about MSNBC here), but my Italian relatives reported that for the first time in a long time, they felt like issues, rather than sound-bites, were being discussed.  Having just come off an election that seemed like it was between Sarah Palin and Bill Ayers, it sounds almost like democratic ecstasy.

For more on the distinction between corporate contributions and independent expenditures, I’ve added this post, by CCP President Sean Parnell, which is cross-posted at the Center for Competitive Politics’ website: www.campaignfreedom.org

Continuing campaign finance “reformers” pattern of dramatically misunderstanding what is at stake in Citizens United, E.J. Dionne of the Washington Post yesterday unleashed a hysterical and factually-challenged column in advance of tomorrow’s crucial re-argument in front of the Supreme Court.

Early on, Dionne claims that “The court is considering eviscerating laws that have been on the books since 1907 and 1947 — in two separate cases — banning direct contributions and spending by corporations in federal election campaigns.”

The problem, of course, is that the Supreme Court is not “…considering eviscerating laws that… [ban] direct contributions… by corporations…” Only independent political speech by corporations (and unions) at stake in Citizens United. Claiming otherwise is to show that one has not bothered to let facts get in the way of a good hysterical rant.

Dionne continues his Bizarro World Joe Friday act (”Just leave out the facts, Ma’am”) when he states that there are “…precedents, dating to the 1976 Buckley campaign finance ruling, that the court would set aside if it were to throw out the prohibition on corporate money.” Here again, Dionne gets it completely backward. Buckley very explicitly ruled that independent political spending could not be limited (much less banned) because it poses no threat of corruption — and corruption or the appearance of are the only acceptable reasons for limiting money spent on political speech.

But the greatest twisting of facts is Dionne’s assertion that undoing the Austin decision (and the section of McConnell v. FEC that gave a pass to the “electioneering communications” restrictions in McCain-Feingold) would somehow run counter to precedent, something Chief Justice Roberts pledged a great deal of respect for in his confirmation hearings.

Dionne writes: “…there is one member of the court who has spoken eloquently about the dangers of ignoring precedents.

‘I do think that it is a jolt to the legal system when you overrule a precedent,’ he said. ‘Precedent plays an important role in promoting stability and evenhandedness…’

This careful jurist continued: ‘And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments.’ He paraphrased Alexander Hamilton as saying in Federalist 78, ‘To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.’

Chief Justice John Roberts, the likely swing vote in this case, was exactly right when he said these things during his 2005 confirmation hearings. If he uses his own standards, it is impossible to see how he can justify the use of ‘arbitrary discretion’ to discard a well-established system whose construction began with the Tillman Act of 1907.”

Dionne’s error is in believing that overturning Austin would be an upending previous precedent, when in fact it would simply eliminate the decision that stands contrary to almost all other campaign finance precedents. As CCP Chairman Bradley A. Smith wrote previously, “…Austin has long been the odd man out in campaign finance jurisprudence, the case that doesn’t fit the mold.”

And of course Dionne doesn’t trouble himself to find out how things have worked out in the two dozen or so states that allow direct corporate contributions to candidates, let alone independent expenditures.

The general thrust of Dionne’s column, along with most of the “sky is falling” Chicken Littles of the campaign finance “reform” crowd, is that allowing the political speech of corporations and unions to be heard by American citizens represents a grave threat to the republic, presumably because the public might end up misinformed by these speakers (i.e. vote in ways the “reformers” don’t approve of).

Perhaps. But if Dionne is truly concerned about the American public being misinformed on political matters, perhaps he ought to start by applying a little bit of fact-checking to his own writing before he demands that others be excluded from the public arena before they have a chance to misinform?

Well, I’ll agree with you that Pitchfork Ben isn’t exactly my idea of a model Senator, but the history of it is all but irrelevant. I mean, after all, it’s been pretty much proven that the framers of the 14^th Amendment had no intent to grant individual rights to corporations, and yet we’ve kept Santa Clara enshrined as the law of the land for 120 years, and no Justices but Douglas and Black have ever suggested changing it.

There is obviously a distinction between a third party expenditure and a first party expenditure, but I think it is a distinction without a difference. First National Bank v. Belotti was the first of this line of corporate speech cases, and it seems clear to me, rereading it, that the major distinction between Belotti and this Hillary movie case is that in Belotti, the legislation to abolish corporate election expenditures was passed to abolish specific speech– relating to a referendum on a graduated state income tax which businesses like the First National Bank opposed. This case would seem to be equally anti-speech to all sides, as it were, which makes it more of a time, place and manner restriction. There’s a compelling interest in running fair elections, and given the rather appalling history of corporate money in politics, from Standard Oil and the Railroads at the turn of the 20^th Century, to ITT in the Nixon administration (for younger readers, they paid for the Republican National Convention in 1972, in exchange for having antitrust charges dropped) to any number of examples today.

This post expands the scope of the debate and  responds to an outside post by Frank Askin, a Professor of Law and Director of the Constitutional Litigation Clinic at Rutgers Law School, at NJ Voices.

Askin’s piece addresses three alleged shortcomings in the free speech side of Citizens United v. FEC, specifically as defended by noted First Amendment litigator Floyd Abrams on the Bill Moyers Journal Friday.

Askin’s issues are (1) the longstanding ban on corporate political donations, (2) the distinction between member-based union speech and shareholder corporate speech, and (3) the constitutional distinction of “We the People” not bestowing First Amendment rights on corporations.

Center for Competitive Politics Chairman Brad Smith addressed these specific issues at length at a Cato Institute policy debate today with American University law professor and Maryland state Sen. Jamin Raskin. The video is available here and is embedded at the end of this post.

First, as the Center for Competitive Politics has noted several times, the Tillman Act of 1907 is not at issue in this case. The Act banned direct contributions by corporations to candidates, whereas Citizens United is about corporate — and by extension, union — independent expenditures. By definition, candidates have no control over such speech. We’ve also addressed the muddled history of the Tillman Act, which was motivated in part by racist sentiments, and addressed a corporate environment much different than exists today:

The Tillman Act’s sponsor was Sen. “Pitchfork” Benjamin Tillman (D-SC), a notorious racist and proponent of Jim Crow laws. He pushed the corporate contribution ban as a way to kneecap corporations opposed to his agenda because they did not want the added expense of providing separate accommodations for different races or restrictions on hiring black workers.

Second, as Brad Smith has previously blogged about, the argument that corporate independent expenditures are fundamentally different than member-based union expenditures and violate shareholders’ rights doesn’t make sense for at least two reasons: (1) Corporations already spend money on charitable contributions that can have political overtones and direct lobbying that shareholders may disagree with. This is a matter for corporate governance legislation, perhaps requiring management to inform shareholders of political spending, not a matter of broad campaign finance law. (2) This distinction is overkill — incredibly broad. It doesn’t allow ideological corporations that people join precisely to further their political views to speak and also silences closely held corporations in which there are no dissenting shareholders.

Third, Askin suggests that the First Amendment does not apply to corporations, that the Framers somehow decided to leave out a class of people from the “We the People” preamble of the U.S. Constitution. He makes the case, a common refrain of “reformers” that corporations are artificial entities that can amass great wealth. There are several problems with this line of argument: (1) Corporations are associations of people — shareholders, employees, etc.; by affirmingtheir First Amendment right to associate, they do not give up their First Amendment right to free speech.

“Reformers” presumably acknowledge the First Amendment rights of non-profit corporations not covered under Austin, so-called MFCL organizations that are allowed to use their general treasuries for independent expenditures, and media corporations like the New York Times Co. It may have been defensible in the 1970s to only allow a media exemption for the establishment press, but in this modern era of You Tube, the line between established and new media is blurring. Why should an organization like Citizens United (or Michael Moore) seeking to produce a political documentary enjoy less of a First Amendment right than FOX News or MSNBC producing a similarly scathing documentary about Barack Obama or Sarah Palin, respectively? Simply because the state recognizes a legal aspect of a corporation does not mean its members are simply an artificial being notentitled to First Amendment rights.

The First Amendment protects the “freedom of speech,” not just the speech of U.S. Citizens. Foreign citizens, media organizations, minors, non-profits and other people and organization who aren’t citizens are allowed First Amendment rights (not necessarily donating to candidates, which is covered under a different legal rationale).

Ultimately, it is Frank Askin who is defending the indefensible — the right of the government to censor and restrict political speech.

I hope Lionel addresses this distinction further, but what’s at issue in this case is not direct contributions to candidates but independent expenditures that advocate for or against a federal candidate. This isn’t about whether Apple can contribute $1 million to Nancy Pelosi’s re-election but whether Apple can run a $1 million ad campaign saying Nancy Pelosi has been good or bad for Silicon Valley and should (or should not) be re-elected.

Brad Smith, the chairman of the Center for Competitive Politics, and a former FEC Chairman, spoke on this issue today at a panel discussion about this case at the Cato Institute. This distinction was addressed at length.

Furthermore, it’s important to recognize the actual purpose behind the 102-year-old statute cited here: the Tillman Act of 2007.

Brad Smith addressed this related issue on Citizens United v. FEC in a recent Washington Examiner op-ed:

“Reformers,” also bemoan the demolition of a “century-old statute.” In fact, the Tillman Act of 1907, held up by campaign finance reformers as the sacred law banning corporate contributions, is — as one would expect of a 100-year-old law — outdated and out of step with modern politics and technology.

It was passed at a time when corporations were new and uncommon. Today, nearly every corner barber shop and non-profit organization is incorporated.

The Tillman Act’ssponsor was Sen. “Pitchfork” Benjamin Tillman (D-SC), a notorious racist and proponent of Jim Crow laws. He pushed the corporate contribution ban as a way to kneecap corporations opposed to his agenda because they did not want the added expense of providing separate accommodations for different races or restrictions on hiring black workers.

Campaign finance regulations are often about politicians or interests limiting dissent, silencing critics, and protecting their power — not promoting reform or curbing corruption.

Hi, I’m Lionel Artom-Ginzburg. I’m a lawyer in Pennsylvania whose practice includes a fair bit of election and campaign finance law.

The history of corporate restrictions on campaign contributions is extensive– 1907 for Federal elections, and older for some state elections. The rationale is pretty obvious: unlike individual or PAC contributions, corporate contributions are much more difficult to track. Individuals and PACs have all their donors listed, these days, online. If, for example, Apple Computer were allowed to make donations directly to candidates, who’s to say who is making that contribution? The Board? The Shareholders? Steve Jobs himself? Some person in middle management with access to one of Apple’s checkbooks? What if I’m a shareholder and don’t agree with the contribution? What’s my recourse? To sell the stock? To file a derivative action for waste? To show up at the next annual meeting and try to get a minute and a half of management’s time to let them know how unhappy I am? The notion of a corporate right to free speech in elections is much more recent– 1978.

Hiding the origin of money is, in other circumstances, a very serious crime in our society (ask Tom DeLay). Yet there’s no way you could permit corporate expenditures on elections without also permitting the anonymous sourcing of money in those elections. Is there a compelling enough interest here to overturn a 102 year old statute?

Let’s start this debate by examining the many recent media reports discussing Citizens United v. FEC.

First, I’ll disclose the Center for Competitive Politics’ interest in this case.  We filed a friend-of-the-court brief when the Supreme Court initially considered the case. We also filed a friend-of-the-court brief for the rehearing of the case, which will occur tomorrow. Our chairman, former FEC Chairman Brad Smith, also filed an independent friend-of-the-court brief along with other former FEC commissioners.

Brad also recently published this New York Post op-ed and blog post on the case.

Our basic position on the case can be summarized from the N.Y. Post op-ed:

If political speech can be banned merely because it is produced or distributed by a corporation or with some corporate funding, then (as the government now argues) books, movies, newspapers, TV and radio could be prohibited from any political speech or programming. Surely this is anathema to the First Amendment.

As currently interpreted by the Supreme Court, the First Amendment provides greater protection for flag burning, nude dancing, simulated child pornography and tobacco ads than for core political speech.

The Citizens United case provides an opportunity for the court to return to first principles and declare that the words of the First Amendment, “Congress shall make no law . . .” apply to all Americans, not just those whose speech is favored by politicians.

Below is an exhaustive list of recent media articles on the case. I’ll be pulling out bits of certain articles later on today to discuss the case.

Wall Street Journal, op-ed: The Chance for a Free Speech Do-Over; Will the Supreme Court finally overturn McCain-Feingold and enforce the First Amendment?

Washington Post, editorial: Exercise Caution; Supreme Court should respect precedent in deciding Wednesday’s campaign-finance case

Washington Post, op-ed (Robert Kaiser): Will Deep Pockets Always Win? It’s In Roberts’s Court.

Washington Post, op-ed (E.J. Dionne): A Test Case for Roberts

New York Times, editorial: A Threat to Fair Elections

Washington Times: Justices take on campaign-law challenge

Politico: SCOTUS campaign case could boost GOP

Boston Globe, op-ed: Corporate free speech? Since when?

AP: Hillary movie puts campaign finance limits at risk

CNN: Analysis: Lines drawn as campaign finance case nears

CBS, Andrew Cohen’s Court Watch: Sonia’s Featured Role in ‘Hillary: The Movie’

The Hill: Supreme Court to hear campaign finance case

SCOTUS Blog: Argument preview: Corporations in politics

Legal Times/First Amendment Center: ‘Hillary movie’ case: courtroom drama

ABA Journal: Hillary: The Law Changer; Unusual pre-term rehearing may reshape campaign finance laws

Houston Chronicle, op-ed: Court should keep ban on campaign spending

American Constitution Society: Citizens United v. FEC Panel: Video Now Available

In my latest post on legal education, I diagnosed the supposed problem with legal education in fairly simplistic terms as follows: law schools should teach more skills. Recognizing that the call for more teaching of skills inevitably entails less teaching of substantive law (including the skill of legal analysis), I suggested that “this sacrifice is largely unnecessary and probably counterproductive.” In this post, I follow up on that assertion and add a few thoughts about more promising avenues for teaching skills.

Michael Woronoff, who is a practicing lawyer in Los Angeles and an adjunct professor at UCLA, has offered some helpful nuance on the skills debate in his recent remarks at the AALS Mid-year Meeting in Long Beach. (You can download his remarks here.) Michael asserts that legal training consists of the transmission of three categories of information: substantive knowledge, practical skills, and expertise.

Michael and I agree on the importance of substantive knowledge, and we both cite the Carnegie Report in support of the notion that law schools do a pretty good job of transmitting such knowledge. Michael also makes some interesting points about the shortcomings of law schools in teaching substantive law to students who want to be transactional lawyers, but I will save that issue for another post. The more general point is that training in substantive law is valuable, and if you propose to cut back on that training, I believe you have a pretty heavy burden of proof.

Which brings us to the issue of skills training. Again, I rely on Michael to provide the framework for our discussion. He observes that most people who talk about the need for more “skills training” in law schools seem to be talking about a combination of practical skills and expertise. The trick to thinking about skills teaching is to “distinguish between the types of skills that law schools can teach and those they cannot.”

Exactly right.

Michael’s view is that law schools cannot reasonably be expected to teach expertise. Most law professors are not expert practitioners, and even if we were, students wouldn’t have the time in three years to develop expertise after learning the fundamental principles of substantive law. Moreover, “almost any attempt by law school to replicate real practice will necessarily be much too artificial.”

All of this leads Michael to conclude that law schools should focus on what he calls “practical skills.” This term comprises both “the ability to perform tasks necessary for the practice,” such as drafting and negotiating for a transactional lawyer, and “an understanding of the context of the practice,” such as “the ability to understand the language and structure of transactions and the rationale behind these structures.”

Excellent. I agree that law schools can — and should — teach such skills. But if you have been paying attention, you see that we have come upon a bit of a quandry: how can we add such skills training without diminishing the quality of our teaching of substantive law?

Michael chides me for my plan to include at least one case study in every chapter of my Business Associations casebook:

In my own defense, I did not suggest that adopters of the casebook teach every case study. I have never done that for the reasons Michael suggests, even though I am not certain he is correct in his objection. (See more on that below.) The point, rather, is simply that we would make case studies more available.

In any event, Michael does not find attempts to integrate skills training with substantive courses particularly attractive. He has a different idea about teaching practical skills: “we should add new courses, which allow students to see how to practically apply substantive law they have already learned.” Michael points to Rob Illig’s M&A course, which Rob described here on The Glom, as a model for such a course. Michael also likes the idea of “adding a first year “Introduction to Business” course, in which students can learn basic business, accounting, finance and economic concepts early in law school to provide better context for future substantive courses.” (By the way, I have taught such a course to second-year students, and it can be very useful.)

The problem with this part of Michael’s analysis is that bit about adding new courses. Earlier in his remarks, discussing the importance of substantive knowledge, Michael complained that law schools didn’t devote sufficient hours to basic courses and that students don’t take enough of the right elective courses to enable them to “become true experts in their future field of practice.” I am sympathetic to these concerns, which is why I am less excited about adding new skills courses than I am about exploring new methods of teaching the traditional, substantive courses.

Which brings me to the issue of “teaching naked.” (Thanks to my colleague Lynn Wardle for directing me to this article.) That’s the way José A. Bowen, dean of the Meadows School of the Arts at Southern Methodist University describes teaching without technology:

If you are a longtime reader of this blog, this line of reasoning may sound familiar to you. Last year, I wrote about moving my PowerPoint slides in Business Associations outside of the classroom … and the mini-existential crisis created by the move. While I am not at all in favor of a heavy-handed dean removing computers from the classroom, Bowen is right about the potential effects of PowerPoint on student engagement. Nevertheless, in my experience, PowerPoint can be useful in the classroom in two circumstances:

• Explaining concepts that are difficult for students to grasp from the reading materials. Last semester, I taught Corporate Finance out of Bill Bratton’s casebook, which is very challenging for most students. We used class time to work through the most difficult concepts.
• Generating class discussion. When reading law, I tend to map relationships. Lot’s of boxes and arrows to show how people or concepts are connected. PowerPoint is very helpful in setting up a class discussion, and the diagrams are a useful point of reference throughout the discussion.

Unless these things are happening, however, I am all in favor of moving PowerPoint slides outside of the classroom. Class time is usually too valuable for lectures.

I am also moving away from Socratic method in upper-level classes. This post is already too long, so I won’t dwell on this point, but the main observation here is that Socratic method is not a very effective means of transmitting substantive law, even if it is useful in teaching legal analysis.

In my view, students can usually get a pretty good handle on the substantive rules by reading the casebook and relevant regulations or statute, then listening to a 10-15 minute lecture online. The best students still have questions, but I am striving to make the class period a time during which students can apply the substantive law using problems, cases studies, simulations, etc. My hope is that such a class would not only answer their questions, but also provide them with better training in the practical skills that Michael identifies.

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.