via Stu's Views

Over at Above the Law, Elie Mystal ran a bit asking his readers to vote the worst law school in New York City. The Above the Law readers, it’s important to note, have a pretty significant bias toward BigLaw and big salaries and big bonuses. The site dwells often on the gossip that comes from the big schools and firms.

So it got me to thinking —  a dangerous subject I know — where did New York’s top judges go to law school?

For comparison’s sake, we’ll first look at the US Supreme Court. Why? Because I need some other top court for a yardstick. And because it is frequently criticized for, among other things, being top loaded with lawyers that have never actually been in private practice, spending all their time in government or academia. I think that, of the list, only Justice Kennedy was in private practice for himself for any length of time, with Justice Scalia doing a brief stint in commercial law and Justice Sotomayor famously hanging a shingle in her apartment for a short time.

Here’s the Supreme’s law school list, and let me know if you see a pattern:

US Supreme Court:
Chief Judge John Roberts: Harvard Law School
Antonin Scalia:  Harvard Law School
Anthony Kennedy:   Harvard Law School
Clarence Thomas: Yale Law School
Ruth Bader Ginsburg:  Harvard Law School
Stephen Breyer: Harvard Law School
Samuel Alito: Yale Law School
Sonia Sotomayor: Yale Law School
Elena Kagan: Harvard Law School

OK, even a pre-tween kid could see a pattern. But that pattern is also a problem.

It’s a problem because people choose law schools based on three fundamental criteria: Geography, money and academics. Some folks couldn’t go to those schools regardless of their grades. Now let’s turn to New York’s top court, since that is where we are going with this:

New York Court of Appeals:
Chief Judge Jonathan Lippmann: NYU Law School
Carmen Beauchamp Ciparick: St. John’s University School of Law
Victoria A. Graffeo:  Albany Law School
Susan Phillips Read:  University of Chicago Law School
Robert S. Smith:  Columbia Law School
Eugene F. Pigott, Jr.:  University at Buffalo Law School
Theodore J. Jones:  St. Johns University School of Law

That’s a pretty good mix giving quite a bit of diversity. Four of the seven went to schools that would not be considered first tier. And yet, there those judges are, at the top of the heap on one of the most influential courts in the country. (And several of those judges, it’s worth noting, have actual lawyering experience, as I culled from online biographies; and by that I mean they knew where to find the courthouse and stand in the well on behalf of an actual, living breathing human.)

It is, perhaps, easy to stick one’s nose in the air and feel good about where you were privileged to go to school. But as the New York Times pointed out recently, law school doesn’t teach lawyering.

And I’ve never had a client or judge ever ask me were I went to law school, nor has any juror ever asked me when the trial was over. So take all that law school stuff with a few shakers of salt.

We start with a law professor that wants to make an exam “fun” by having students relate a cartoon to course materials. Then we move to a practicing lawyer that rips that idea to shreds and beyond. But, believe it or not, I think the concept can lead to better lawyering.

This little idea emanated from Howard Wasserman at TortsPrawf, who wrote:

For no particular reason, I started thinking today about doing a question in which students would get a one-frame cartoon (The New Yorker would be the obvious source, but we could find them from other sources) and have the student relate that cartoon to the material in the course. My wife had an exam that did this in a sociology course and it sounds like a fun idea (although she said it was the hardest exam she had in college).

Scott Greenfield, who often writes of how out of touch law professors are with the actual practice of law, was not amused by this “fun.” He wrote:

This could, of course, be great experience if a client arrives at your office, one-frame cartoon in hand, and asks your advice.

But the idea clicked in my head, though not for the reason Wasserman stated. Many practicing lawyers, the folks in the trenches, can’t write because they can’t sharply identify the issue and present it up front. One-frame cartoonists, however, know all about succinctly nailing the issue.

That succinctness is something I first practiced when working for my dad after law school, because one of his office rules was that every case had to be reduced to a “one-liner.” Thus, a complicated medical malpractice case, that might have many different issues, would be reduced to:

1 year delay in diagnosing breast cancer in 52 year old woman, married, three kids

And that one-liner came in handy not just for office management, but when you approached the bench at a conference and the judge asked what the case was about. Five seconds later the judge knew what is going on and could delve into those parts of the nitty-gritty that might be needed for the conference. That one-liner also served as the opening of every brief.

Law school exams teach you to write, and write and write. Then write some more. And that may be wrong. Perhaps they would better serve aspiring lawyers if they taught them to more sharply focus the issues and write less.

How sharply? Give each student a maximum of 75 words to define each issue. That is a skill they can use in the practice of law. With just 75 words, its tough to bluff.

That 75 word limit comes, by the way, from writing guru Bryan Garner. If you can’t define the issue in 75 words, he teaches, you probably don’t know what it is. Everyone that attends Garner’s CLE class walks out amazed after watching numerous videos of appellate judges discussing how poorly the issues are framed by the lawyers, and even how difficult it might be to find them in voluminous papers.

So that cartoon idea does have some merit to it, though not for the “fun”reason. Teach the students to write less, not more.

And as to the length of this post, if I had more time I’d have written less.
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Addendum: Scott Greenfield wrote last year about how Twitter cruelly forces that type of brevity.

This week US News and World Report published its rankings of law schools. While exciting for the law professor and student crowds, this is usually as interesting to me as the arrival of the Yellow Pages.

But I was intrigued by John Yoo — one of the Bush Justice Department lawyers that rationalized torture — who has moved on to be a tenured professor at one of the nation’s more prestigious law schools, The University of California at Berkley.

Surely, I thought, such an individual would hurt Berkley in the law school rankings. But it didn’t. In 2007 and 2008 the school was tied for 8th. Now it is tied for 6th. The rankers apparently don’t really care if a school employs a torturer.

It left me thinking of the obvious issues of students and law firms potentially boycotting Berkeley, if not formally than informally. After all:

• What does it say about a law school administration that allows a torturer to teach its students?
• What does it say about the students that would agree to be taught by a torturer?
• Is being taught by such an individual a detriment to employability?
• Will alumni continue to give money to a school, knowing that this is how money is being spent?
• Will law school rankers continue to ignore Yoo’s presence on the staff in years to come?

Berkeley, perhaps, will carry on just fine by keeping such an individual on its staff as it has years of reputation under its belt and alumni in high positions around the nation. But it seems rather incredible that a school — any school of any kind, except perhaps selected militant madrases where such conduct might be hailed — would have such a person teaching its students.

For more on the rankings (but not on how Yoo failed to influence the rankings) see:

• Law School Reactions to 2010 U.S. News Rankings (TaxProf);
• Here It Is: The 2009 U.S. News Law-School Ranking (WSJ Law Blog);
• New Law School Rankings (Turley)
• Law School Rankings and the Wisdom of Crowds (Bernstein @ Volokh)
• U.S. News Law School Rankings Officially Released (Adjunct Law Prof Blog)

It’s been buzzing around a couple of blogs that New York is considering funding three new law schools, to add to the 15 we already have. I haven’t seen anyone support the idea yet, except the politicians who want to bring jobs into their districts. But one part of the idea might have merit and be worth considering.

First the nuts and bolts of the proposal, then we’ll go to the naysayers, and then I’ll add my two rupees on which part might be a good. This is from a May 30th New York Law Journal article:

With no advance notice and little fanfare, the Legislature included in the budget passed April 2 money for two feasibility studies: $3 million for the State University at Binghamton and $2.25 million for St. John Fisher College, a Roman Catholic institution in Pittsford, near Rochester.

Additionally, it provided $250,000 for “planning” of a law school at SUNY Stony Brook — to cover expenses such as approvals by the New York State Department of Education and the Board of Regents and accreditation by the American Bar Association. Finally, the Legislature earmarked $45 million for a Stony Brook law school building should one be required.

Now the first person to check in on any such proposal is, you guessed it, Walter Olson who isn’t too keen on the idea:

Because we all know if there’s anything New York needs to subsidize, it’s the creation of more lawyers…The future lawyers of New York thank you, taxpayers!

Next up, Scott Greenfield:

I’ve long taken the position that one of the primary problems with lawyer over-reaching, ethical issues and just plain diminishing revenues is that fact that we have too many lawyers. And if we have too many in general, you can bet that New York, the lawyer haven of the world, has too many in particular.

So what’s New York going to do about it? What else, build more law schools!

Both are right that New York has plenty of law schools. But what we don’t have is plenty of public law schools. Only SUNY Buffalo and the City College of New York are public; all others require the big bucks.

So what do those of modest means do? Do we want the bar to be overly weighted toward the well-to-do, or do we want it to be more egalitarian? Should law be open only to those fortunate enough to have chosen their parents well?

Now I happen to be a big fan of public education, and when I last checked my bio I saw I was still a graduate of SUNY Albany (undergrad) and SUNY Buffalo (law). Building additional law schools may be dumb since we have so many, but more public education is a slightly different subject.

And so those feasibility studies might better be geared toward acquiring existing law schools and converting them to public education. (And making the two that we have better.) Maybe a study will show it is doable, maybe not. It seems to me that what we need are not more lawyers and law schools, but different ones.

I would also add that, in reading the comments of some public officials, the primary concern seems to be bringing pubic money into their own area. In other words, just another porky project. That is a lousy reason to build anything.

But if existing facilities and personnel can be converted from private to public in order to make the law more accessible to talented people of lesser means, then I think that’s something to consider.