A couple days ago the New York Times inexplicably had a front-page story on an issue that is news to no one: law schools don’t teach much about the practical side of lawyering.
Yeah, no kidding. All the usual folks have chimed in (see, e.g., Greenfield, Concurring Opinions, Above The Law, etc.; probably my favorite was Balkinzation tying it larger economic forces), with Elie Mystal having the most depressing take of all:
At the end of the day, this all comes down to the lack of responsibility and critical thinking on the part of individual prospective law students. Law students are not practically trained because they don’t go to law school to be practicing attorneys. They go to law school because they love to “argue,” or “defend rights,” or some nonsense that has little to do with day-to-day lawyering. When they do go, they think little of the long-term financial future they are mortgaging on a law degree.
I sighed just reading that, and had to refresh myself with my old post about The Glamour and Glory of Being A Lawyer.
Before I write another word about the realities of law school and lawyering, let me first discuss something near and dear to my heart: hating the work of Andy Warhol. He’s “the greatest artist of the 20th century” according to the head of “First Open Sale” at Christie’s because his “art” accounts for one-sixth of all contemporary art sales:
Warhol is now the god of contemporary art. He is indeed, it is said, the “American Picasso” or, if you prefer, the art market’s one-man Dow Jones. In 2010 his work sold for a total of $313m and accounted for 17% of all contemporary auction sales. This was a 229% increase on the previous year—nothing bounced out of recession quite like a Warhol. But perhaps the most significant figure is the rise in his average auction prices between 1985 and the end of 2010: 3,400%. The contemporary-art market as a whole rose by about half that, the Dow by about a fifth. “Warhol is the backbone of any auction of post-war contemporary art,” says Christopher Gaillard, president of the art consultants Gurr Johns. “He is the great moneymaker.”
Profitable, but I can’t help thinking his “art” is pointless. That linked article confirmed my biases by noting Warhol actually had to pay the princely sum of $50 to gallery owner Muriel Latow to figure out his own style of “art”:
In return for a $50 cheque, she told him “to think of the most common, everyday, instantly recognisable thing he could”. He thought of his doting mother, Julia Warhola. Warhol had been, according to the philosopher and critic Gary Indiana, her “tantrum-prone, acne-riddled, albino lion cub”, a difficult and sick child to whom she gave maximum attention. He was spoilt—the family’s “moody, tyrannical centre-piece” who “shaped weaknesses into weapons for rejecting anyone he didn’t like and avoiding anything he didn’t want to do”. Julia lived in the basement of the Manhattan town house he had bought with his money from his advertising commissions. She used to give him soup for lunch—Campbell’s soup.
Now that you know where the Campbell’s soup can came from, and how Warhol didn’t even dream up that, let me get to the point of mentioning him. I consider Warhol to have been a shameless pirate of other’s copyrighted works — photographers Charles Moore, Fred Ward, and Patricia Caulfield all filed lawsuits against him for using their carefully composed photographs in dashed-off monochromatic silk screens — but as far as I can tell not one court ever held him liable for copyright infringement, in part because he settled the cases before the question could be answered.
So, did Warhol’s work infringe upon those other artists work? Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991)(“the sine qua non of copyright is originality”). Obviously the art world obviously disagrees with me about his originality, but would a judge or jury? Assuming the jury did find infringement in, say, his Green Car Crash (Green Burning Car I) — which was nothing but a couple overlaid copies, all drenched in the same ugly green, of photographer John Whitehead’s haunting image of a horrific crash following a police chase — then how much of its whopping $71 million auction price was due to Whitehead’s image and how much was due to Warhol’s attempt to “always leave them wanting less”? (Mission accomplished, Andy.)
I don’t know the answer. No lawyer “knows” the answer. Consider the amicus brief filed by the Andy Warhol Foundation in the lawsuit brought by photographer Patrick Cariou against Warhol-esque pastiche artist Richard Prince. This is complicated stuff. It requires technical mastery of the principles of copyright law and creative, careful advocacy applying that law to artistic contributions so subtle that folks like me refuse to admit they exist at all. There is no way law school will ever prepare anyone to advise an artist or a gallery or the owner of artwork on the line between originality and infringement. Lawyers have to develop that judgment over time. Law is a profession, not a technique.
So when I read David Segal open his article in the New York Times with an anecdote about a first-year lawyer not knowing how to file a certificate of merger, I roll my eyes.
Filing corporate documents is among the stupidest things lawyers do. Like I wrote when Fred Wilson at A VC complained about the cost of his lawyers finalizing a venture capital funding deal, you don’t hire lawyers to “finalize” documents, you hire them to exercise judgment:
Just as lawyers have a tendency to be negative and to spend what seems to be too much time on details, entrepreneurs and investors routinely spend months or weeks hammering out a deal and then call a lawyer to “finalize” it in the next few days or hours, sending the lawyer scrambling to figure out what the deal is even about, not to mention do their job in reviewing the details and contemplating the consequences. Fred wanted a lawyer to do his deal because he didn’t want just want the secretarial task of filling out the documents, he wanted a professional to calmly review the situation, carefully consider possibilities, and then candidly advise on the matter — all of which, if done right, takes time and thus money.
Segal’s not alone in completely misunderstanding what lawyers do. Consider what the former dean at Vanderbilt Law School tried to do to make his curriculum “teach what is really going on in the legal system:”
During his tenure as dean, which began in 2005, Professor Rubin tried to update some of the school’s mandatory classes. First, he held a series of focus-group discussions, meeting with law firms to find out what managing partners wished that their new hires had already been taught.
Eventually, these conversations led to a new first-year class, the Regulatory State, an introduction to federal administrative agencies, statutes and regulations. Vanderbilt also made changes to second- and third-year courses.
All lawyers should of course be generally familiar with the federal administrative agencies, but you could already tell from how Prof. Rubin devised a strategy — “meeting with law firms to find out what managing partners wished” — that it was going to fail. The AmLaw 100 and 200 represent a tiny fraction of the legal market. Most lawyers, even lawyers coming out of top schools, will not practice there, and will not represent some massive corporation trying to squeeze through regulatory loopholes their lobbyists drafted. Most lawyers will practice in small firms or will hang out their own shingle.
I wish that law schools would spend more time teaching law students practical skills, and it would be great if law schools taught them something about the practice of law itself, but let’s not mistake the purpose of law school. Law school should not, and cannot, be set up to teach students particular technical skills like filing a certificate of merger because there are simply too many little technical skills specialized to each field for that to work. Instead, law school should lay the foundation for graduates who are capable of learning and developing technical skills and of exercising sophisticated and mature judgment in the face of uncertainty.
Maybe ancient Contracts cases aren’t the way to do that, but I know for a fact that no lawyer was ever made smarter, more diligent, more mature, or more effective by learning how to fill out a form.