Statute of Frogs

There’s a bit of discussion at Concurring Opinions and The Volokh Conspiracy about the relative merits of teaching from unedited cases as opposed to a casebook that provides edited versions of them.  I took one class in law school where we read unedited (mostly SCOTUS) cases and it was (not coincidentally) the best class I took during my three years.

Casebooks have their inherent advantages.  If one is trying to learn the basics of a broad area of law, it’s much more useful to read hundreds of cases that have been distilled to their essence than to read a few dozen in their entirety.  But at some point, lawyers have to learn how to quickly process cases in their raw form.  This is just one of many ways in which law school often fails to prepare students well for the practice of law.  It was in this class that I really learned how to work with complete cases and make sense of them, a skill I use every day in my clerkship.¹

Another aspect of this issue is that casebooks teach students to look for the single nugget of wisdom in a case.  We get the idea that a case “stands for” a particular legal proposition.  While that is often true in practice, treating all cases that way removes any sense of the subtlety that often exists.  I see this lack of subtlety in briefs all the time.  Lawyers will distill a case down to a particular legal principle, but will fail to address the factual differences between that case and their own.  Alternatively, they will identify the broad principle in the case, but fail to see how that principle fits into the concerns that the judges raised in the rest of the opinion.

Finally, often one of the parts that gets cut out of cases in edited form is the review of the existing case law that judges invariably embark on.  It is interesting — and valuable — to see the subtle ways in which courts distort their own precedents in order to reach a desirable result in later cases.  That is often lost in the casebook view of an area of the law.

Obviously, these are not skills that always need to be taught in the classroom.  Legal research assignments, journal comments, and other activities will help students develop those skills.  But I, for one, am grateful to have had the experience of dealing with the raw cases in a classroom context.  I think I’m a better lawyer for it.

1. Well…maybe not every day.  But really often. [↩]

Butterflyfish sent an e-mail asking about clerkship applications. Since I’ve given almost all the advice I have in public,¹ I figured I’d just post my thoughts here. I’ve been through this three times now, once for my own applications and twice on the “inside,” so I’ll probably end up spreading this over a couple of posts.

The first thing to know (and that people don’t seem to talk about very much) is that clerkships are very different from each other. Besides the obvious differences between state or federal courts and trial or appellate courts, judges structure their chambers very differently. In some chambers, there’s lots of interaction between the judge and the clerks. On the other hand, I know of judges who communicate with their clerks only in writing. In some chambers, there’s lots of back and forth during the editing process; in others, once the clerk turns over a draft, that’s probably the last she’ll see of that opinion. Some judges have their clerks work on every order; some only have their clerks draft opinions. And so on. So get as much information as you can about how a particular judge’s chambers operate.²

The second thing is that, with very few exceptions,³ any clerkship is a fabulous experience and is vastly better than not doing one, particularly if you want to litigate for a living.

So while I definitely recommend getting as much information as you can, I wouldn’t turn down a clerkship opportunity lightly. ⁴ Even if there are judges you’d rather work for, don’t miss the opportunity to do a clerkship without a really good reason.

Because the process is so unpredictable, it’s hard to know what your chances are of getting a clerkship. My best advice is to find a professor you trust, ideally one who clerked where you want to clerk since the “markets” vary a great deal from court to court, and ask that person for an honest assessment of your situation. ⁵ It’s difficult to decide how broadly and where to apply. Because everyone’s situation is a little different, it’s really helpful to have some personal advice. I also solicited advice from other professors and from practicing attorneys about which judges had particularly good or bad reputations on the courts I was interested in. Once the process is actually going on, it can move really fast. So the more information you have in advance about the judges you’re applying to (and your chances of getting an offer) the better prepared you are to react when something happens. There’s no harm in applying broadly, but the more you know about your preferences (either geographically or for particular judges) the less likely you are to get crossed up later.

1. Where I wasn’t even anonymous-in-theory [↩]
2. In most cases, there’s really no way to do this before the interview. But if you have access to former clerks who are alumni of your law school or attorneys at your summer job, get as much information as you can out of them. [↩]
3. It’s often hard to get good information on who they are, but there are a few judges who are very unpleasant to work for. [↩]
4. Your school career office may tell you turning down clerkship offers is just not done and that you have to accept any offer you get. While it’s true that it’s pretty rare (and that judges take it pretty hard), in the end it’s your life and you should do what you think is the right thing for you. [↩]
5. If there’s a clerkship committee at your law school, they may also be able to give you advice. But bear in mind that their priority is getting as many students as possible into “good” clerkships, not necessarily getting you, personally, into the one you want. That said, they can be valuable resources. [↩]

I was back at the law school last night for the first time since graduation. It felt surprisingly weird to be back. It was nice to see the people I know who are still there, but I felt very much out of place walking through the building. It’s only been about 10 months since graduation, but I guess things have changed more than I realized.

Interesting op-ed in today’s WSJ arguing (not very controversially, I would imagine) that law schools aren’t really very good at training people to be lawyers.  I mostly agree, particularly with statements like:

By reading about the law rather than engaging in it, students end up with the misperception that lawyers spend most of their time debating the niceties of the Rule Against Perpetuities rather than sorting out the messy, somewhat anarchic version of the truth that judges and courts care about.

and

By giving students the false idea that being a lawyer is all about intellectual debate, we also drive the wrong students to law school in the first place.

On the other hand, I think that, without the intellectual debate in law school, new lawyers would lack some very basic argumentation skills.  While its true that law involves sorting out messy versions of truth, it also involves making the sorts of finely honed doctrinal arguments that the case method teaches.  Certainly the current balance, particularly at elite law schools, is skewed very much towards doctrine.  But I’m not sure that skewing things in the other direction would improve the situation.  I see lawyers every day who have an argument to make, but don’t know how to marshall the existing caselaw to support it.

This is very much apropos of my earlier post on the difference between district courts and appellate courts.  Appellate courts are very doctrinally oriented and well-suited to the skills taught at top law schools.  District courts are terminally complicated and provide a crash course in “sorting out the messy, somewhat anarchic version of the truth.”

Hat Tip: How Appealing

Law schools place a lot of emphasis on legal writing. This makes sense, since most of what lawyers do is written. In general, though, I think people shouldn’t move on to legal writing until they’ve got a basic handle on writing. You know: proper English sentences. Sadly, this doesn’t appear to be a requirement.

Earlier this fall, I received a brief which contained a 10-comma sentence. Unless you’re Marcel Proust, there’s no excuse for that. Today, I got a letter with a sentence of the form “In addition, I have also [done another thing] as well.” How much more redundant could you be?

It’s a travesty, really. But not unusual.

Law schools, of course, have every incentive to get their graduates into high-priced, prestigious law firms.  Not only does it make the law schools look more prestigious, but it gives the graduates lots of money they don’t have time to spend and which, so the theory goes, they can donate to their law school.  According to this article at Precedent, Yale Law School is at least honest about the cost of that path.  Their career development office has a handout that helps students figure out what 2200 billable hours really means.  The numbers are pretty scary and students who are on the Biglaw track should at least make an informed choice.

Hat tip:  Above the Law

K over at divine angst has this post advising potential students not to go to law school if they don’t want to be attorneys.  There are a few comments pointing out other reasons people might go to law school.  I think I would shade k’s advice differently.  Nearly all law schools are set up to get their graduates into firm jobs.  There are lots of reasons to go to law school (I’ve heard several investment bankers and corporate executives say that a JD is better preparation than an MBA), but if you’re not planning to join a firm, you won’t have the job search resources available to you that the “standard track” students have.

I think it’s probably no different for the people who are planning to go into government or public interest jobs.  At most schools, that means doing all your own legwork for a job search.  People looking for firm jobs get spoiled when lots of potential employers come to us during OCI, but it’s certainly not the only way.

I’d shade k’s advice this way:  if you don’t want to practice at a firm, pick your school carefully and start planning your job search early.  Don’t let the relative lack of preparation for a job search that OCI allows lull you into a false sense of security.

I don’t really know where I’ll be in 20 years.  I might be practicing law and I might not.  But I have no regrets about quitting my computer job to go to law school.  I feel much more prepared to go in whatever direction seems right than I did before I went.  I went to law school because I’d become pigeonholed in my consulting job and I didn’t want to end up there again.  I think there’s no more flexible professional or graduate degree than a JD.

This post is of absolutely no use to those taking the bar this year, but it’s been on my mind.

Many people told me during law school not to take classes just because they were on the bar. Basically I think that’s sound advice. I didn’t take Fed Tax or Family Law and I have no regrets about that.

If, however, I hadn’t taken Evidence and, to a lesser extent, Crim Pro, that’d be a problem. So my advice: don’t take anything just ’cause it’s on the bar, except Evidence and some course that deals with the Fourth Amendment.

If I fail because I screw up a Family Law or Fed Tax question, I promise to return and modify this post.

I have to imagine that, to the degree that firms are reluctant to hire older graduates (and certainly some firms are), this is why. Sure, there are younger students who act this way, but it doesn’t make you wince quite so much when they do it. (Hat Tip)

It was almost exactly three years ago I started reading law student blogs.  I was about 6 weeks away from starting law school and I’d finally come clean to my boss and my clients and told them I was leaving.  What I really wanted was to find the blog of some other 30-something, second-career law student.  But there wasn’t much of that sort.  I found many blogs I liked and many people whose stories I followed through their blogs, but no one who was on my same path.

Now, however, there seem to be a profusion of blogs by law students with families, former careers, and a few years under their belts.  Just to name a few, there are:  Transmogiflaw, Law and Mommyhood, Old Law Guy, Legal Quandary, Energy Spatula, and Yayarolly.  I’m really happy to see that these are all out there for a few reasons.  First, I think it’s very intimidating to go to law school from some unorthodox path, so it’s always nice to see others out there doing the same thing.  Second, I’m really happy that I decided to go to law school, so I’m glad to see other old folks making the same decision.  Even though I’m now through law school, I still feel warmly about the idea of making a change and going to law school.

So three cheers for the old folks taking the law school plunge.

As of Monday, I’m officially a JD.  Now that the family is mostly dispersed back to their respective homes, the postings should get more frequent again.

Graduation is Monday and it’s starting to seem real.  I picked up my cap and gown yesterday and verified that all my grades were in.  As far as I can tell, there’s now nothing to keep me from graduating.  The family starts to arrive tonight.

It’s still weird no longer to think of myself as a law student, especially because I also can’t think of myself as a lawyer yet, either.  I’m sort of in limbo passing from my student days to my professional days.  There was a similar period when I made the transition the other way.  I quit my job of eight years at the end of July and school didn’t start until late August.  But I had been thinking of myself as a law student for months by that point.  This time, it’s pretty clear that I’m not yet where I’m going, but the longest part of the trip is definitely over.

Since there’s family coming to town, I imaging updates will be few over the next 5 or 6 days.  More when it’s all over.

Ilya Somin at The Volokh Conspiracy makes the case for abolishing the Bluebook and talks about why it will never happen. Many people have commented both agreeing and disagreeing. The arguments against the bluebook largely break down into two categories

1. The Bluebook is too complex and dealing with its intricacies is an enormous waste of professors’ and students time
2. Lots of portions of the legal world (and the non-legal academic world) do just fine without it

These statements are both in some sense true as far as they go, but I think they miss the point.

First, the Bluebook is not to blame for the huge amount of time that law review members spend editing articles. Once an editor is reasonably familiar with the Bluebook (which is, after all, the reason for write-on competitions), the vast majority of citations can be looked up within a minute or two. What takes far more time is cite checking. In fact, Bluebook citation formats are as complex as they are largely to ensure that all the information needed to check an article’s citations are present. We can discuss the merits of having armies of law students checking the citations for legal scholarship separately, but the ills of that practice shouldn’t be heaped on the Bluebook.

Second, any publication needs to have a style guide. Style guides are, by nature, big and complicated. The Chicago Manual of Style runs to over 900 pages, including over 200 pages devoted to citation. The Bluebook is complicated because it aims to be comprehensive and because law review articles cite a dizzying array of sources. If the Bluebook were simpler, editors would have to make judgment calls more often.

The Bluebook doesn’t get used in the “real” world because consistency is far less important. If a lawyer’s citation style in her filings with one judge don’t match those she files with another, no one cares. If two articles printed in the same issue of the same journal have different citation conventions, that look shoddy and unprofessional.

Don’t get me wrong. I would never argue that the Bluebook isn’t picayune and extraordinarily anal. And many of the editors who use it are even worse. But it serves a useful purpose and isn’t responsible for all the ills of the way in which legal journals operate.

Incidentally, Somin’s economic argument about why the Bluebook will never be abolished is spot on. The people who would have to make that decision (the editorial board of a given journal) are the very people with the least to gain (since they’ve already gotten pretty handy with the Bluebook) and the most to lose (since they’d have to deal with the chaotic editing that would result in the short term from any change).

Just got home from my last exam of law school.  It’s oddly disorienting.  I remember the end of my last exam in my first semester:  I felt like a huge weight had been lifted off my shoulders.  There’s some of that today, but it’s a bit more nostalgic.  I’ve thought of myself as a law student for the last three years and now I’m not one anymore.  I’m really excited about everything the comes next, but it’s quite a change.  Still, the more it sinks in, the more it feels like a huge weight has been lifted off my shoulders.  Give me a few hours.  Then the party can begin.