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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.

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