Booktvs college series. Host and youre watching booktv on cspan2. We are on location at the Georgetown University school of law here in washington, d. C. Where were interviewing professors who are also authors. Joining us now is professor robin west. Her book, teaching law justice, politics and the demands of professionalism. Here is the cover. Professor west, what does it cost to go to law school today . Guest oh, my lord, it costs, oh, lets see, oh, somewhere between 10 120 to 200,000. Many students graduate with that amount of debt or more once you figure in the cost of living. It can be a significant financial investment. Host is it worth it . Guest not all that law schools are that expensive, of course. Host is it worth it . Guest oh, i believe it is. I believe it is. However, its clearly the case that law schools are graduating too many lawyers, too many jd graduates. We have over the last few years graduated somewhere around double the number of law graduates as there are law jobs that the economy can absorb. And this has created a serious crisis of underemployment and unemployment for our recent law graduates. Many of whom are now competing with lawyers who have been squeezed out of big firms or who have been unemployed for the last two or three or four years. This is the biggest crisis facing law schools right now. Its simply the number of graduates who are, who have finished law school who are on the market who are unable to find legal jobs. Host is the way Law School Teaching is structured, is it the correct way, in your view . Guest i think that the problem is not that weve, that were teaching law school in a terrible, bad way. I think its inadequate and insufficient for some purposes, and i suggest a number of reforms in the book. But i dont think the problem is with the basic structure of law school. The problem, again, is there are simply too many law schools graduating too many people into a market that has become saturated. We need to cut way back on the number of people or who are attending and then graduating there law school. Thats the basic financial crisis that law schools are facing. Host if we cut back on the number of people graduating from law school, will that create a shortage for people who need lawyers . Guest well, in some ways theres already a short act for people who need lawyers. The middle class, particularly the lower ends of the middle class, do have problems finding lawyers that they can afford to pay. People who have too much money to qualify for legal ailed, but who are not aid, but who are not sufficiently wealthy to pay top dollar for top lawyers can have trouble right now finding lawyers. So this some ways the problem is a mismatch between middle class people who need lawyers for ordinary events in a lifetime writing a will, closing a housing sale, getting a divorce, negotiating a custody agreement with a warring spouse for the care of your children, etc. These are ordinary legal events that people in all economic spheres of life face. And many people have trouble finding lawyers to meet those needs. So the problem is not simply that theres an overabundance of lawyers, its that were graduating too many people who cannot simply move into preexisting jobs, but who also cannot put together the resources and the skills necessary to go into a ordinary, solo practice so as to service the needs of middle class people who cant afford or law firm prices. Thats theover arching problem. Host is there a disconnect between legal scholarship and the practice of the law . Guest theres certainly a disconnect as felt by the practicing bar. Judges and lawyers increasingly say that legal scholarship is not serving the ends of professionalism and not serving the ends of the Legal Profession. Im not sure thats a problem. I dont know that it should be the goal of legal scholars or of legal scholarship to meet the immediate ends of professionals. To my mind, what legal scholars should be doing is taking a detached view of the law, of legal institutions and of the Legal Profession itself and subjecting it to rigorous inquiry. They should do so toward the end of trying to critique laws so as to further the ends of justice, asking questions about to what extent the laws that we have today actually do serve the ends of justice, and they should do so toward the end of increasing our societal knowledge about the legal system. They should, in other words, a scholar should, in other words, use scholar so as to further both the end of justice and the end of knowledge, the end of truth. Thats the traditional role of the academy in which law schools today are situated. Sometimes that scholarship will be of use to the practicing bar and to the bench, but sometimes it wont be. Sometimes the goals are more, are more farsighted than that. Host now, youre a law professor. What do you teach here at georgetown . Guest i teach contracts sometimes, i teach tort sometimes, and i teach a number of seminars such as law and humanities, law and literature and jurisprudence seminars. Host have you practiced law . Guest i practiced briefly after i graduated. Host and why just briefly . Guest oh, i knew, i knew halfway through law school that i wanted to teach. I did not go to law school with that goal this mind many. I think its still a case that most law students go the law schools intending to be lawyers, not intending to be law professors. And so like most of my peers, i decided on law teaching about halfway through law school. Host if you went out into the marketplace today, would you feel qualified to practice law . Guest no, i would not. Host why . Guest oh, because i have not, i have not studied law with that goal in mind for many years, and i have not maintained skills with that goal in mind for many years. No, i am a legal academic [laughter] for better or for worse. I feel quite comfortable in that role. I dont think these roles are easily interchangeable. Not for most people. For many people they are. I have a thurm of colleagues here at georgetown and throughout the country who combine law teaching and legal scholarship and legal study with some sort of Legal Practice, usually appellate practice. But thats not the norm. The norm today really is a legal academic who is simply a scholar and a teacher. Host whats appellate practice . Guest arguing cases in front of Appellate Courts, in front of Appellate Courts rather than in front of trial courts. Host do you think, do you think its necessary for you to know how to practice law . As a law scholar . Guest no. I think that law scholars have different areas of expertise. Law scholars should be masters of some aspect of the law, not necessarily some aspect of Legal Practice. There are a number of law scholars, of course, who are masters of some aspect of Legal Practice, and theres a profound need for those people, i think, this the Legal Academy. But i think it would with a shame if law schools took such a pivot toward creating what are now called practiceready lawyers that the entire academy became, in effect, a vehicle for facilitating apprenticeships this law. Thats not what law schools and what the Legal Academy has been for about the last hundred years, and its not what its set up to do. Finish we would lose we would lose an awful lot of value if law schools abandoned their traditional, their nowtraditional role of examining and criticizing law and legal institutions and the Legal Profession itself and instead refashioned itself toward the end of simply preparing law students to be practice ready. There would be tremendous opportunity costs in doing that. Host whats one of cases that you like to go to when teaching class . Guest oh, the cases that i most enjoy are the firstyear common law cases. I just think theres nothing more fun than teaching cases like hadley v. Backs son dale or hawkins v. Mcgee. Host and what are those cases . Guest oh, these are cases that you may recall did you go to law school . Host i did not. Guest well, then you wont recall. [laughter] many contracts start out with the case about a tower and his son in a father and his son in the early part of the 20th century suing their family doctor. The son had had an industrial farm accident and had seriously injured his hand. The only remaining injury, though, was cosmetic. It looked somewhat deformed. A surgeon promised the father and the son that the surgeon could make the hand whole. The surgeon then proceeded to do the operation, and the hand came out much worse than it had been prior to the operation, and so the father and the son sued the surgeon for breach of that promise to make the hand whole. And the court had to grapple with the question whether the promise that the doctor had made was enough like the kind of promises made in commercial contexts so as to warrant the use of a measure of damages thats really more appropriate for purely commercial contexts. And the court decided that it was, indeed, enough like a promise, like a guarantee or a warranty that, say, a machine part would be well functioning to permit a measure of damages that gave the father and the son the full value of the promise, the full value of a healthy hand. And then that required the court and then, ultimately, the trial jury to determine what the full value of a healthy hand would be. So those are, thats a example of a really interesting and fun case. Thats also the case that the movie the paper chase starts out with. So if youve seen that, you may recall it from the movie. Host teaching law justice, politics and the commands of professionalism. You write many here that critical legal scholars have complained for over 30 years now that mainstream doctrinal scholarship is nothing but sink fancy. Academics pleading for nods of approval from father figure judges, legal scholarship written in the contemporary version a few years ago is effectively dead, it has no passion, no sense of purpose and no large ideas to drive i felt felt drive it. Guest well, i wrote a response. I dont agree with that view. [laughter] but be i understand where hes coming from. There is a worry at different times over the last 50 years of legal scholarship that scholars try too hard to produce scholar hardship that will fill the gaps in legal doctrine. And when that is the goal of legal scholarship, the legal scholar is, in effect, reasoning this exactly the same way a judge should reason when deciding a case which similarly falls within the gaps of existing rules. Thats what legal scholarship is, then scholarship is not going to be very deep cutting. Its not going to be very critical, and that was pierres objection to the present trajectory and the present trends in legal scholarship, and i think theres something to that. Legal collarship was very selfconfident in its role, i think, during the warren court years and in the aftermath when it seemed to people in the academy and to many judges and lawyers that real problems of social justice could be addressed through the courts and through litigation and through Supreme Court reasoning. If we could just think our way through to correctly understanding these grand clauses of the constitution, we would actually create a more just society. So the courts in the academy were both engaged in this project, i think, of fashioning good and coherent and just policy, but coming off of or coming from these foundational documents, the constitution, various civil rights acts, even the declaration of independence. And i think that whats happened over the last few years thats led to complaints like pierres is that that confidence has dwindled, has fallen away in some ways. So legal scholarship in a sense has lost its, has lois its sense lost its sense of robust engagement with the project of creating a just society. And to my mind, the solution to that is not to pull back from the project of legal scholarship, but to reengage even be that means to reengage in a more critical way and in a more deep cutting way. The problems that were facing right now, i think, are not problems that are going to be resolved through thinking more clearly about the equal protection clause of the 14th amendment or the due process clause of the 14th amendment. We do have to think thruways to use law and to use our legal institutions to solve these problems that are global and existential. But its not going to happen through legal scholars making small and sort of modest suggestions for how to adjust law at the margins. Host you also write law schools offer an education designed for a dysfunctional and professionallystunted conception of what it means to be a lawyer. Guest uhhuh. Well, the required set of courses that law schools offer today is basically the same set of required courses that were offered in the 1970s, the 19 1950s, the 1930s and even in the 19teens. Well, the world has changed dramatically since then. The basic firstyear set of courses, contracts, torts, property, criminal law, even constitutional law, legal educators settled on that set curriculum at a time this the history of law schools this the history of law schools when that curriculum made a great deal of sense. Most law at that time was common law. Most law at that time was derived from this canon call set of case laws like the case i described for you. Thats not an english case, thats an american case, but most law was of that sort. And so to teach law students what it meant to be a lawyer in 1900, 1910 and even 1920 did this large part heene to teach them the reasoning skill of these cases, two hundred or three hundred cases would do it. Well, or thats not the nature of law today, and its not the nature of Legal Practice today. Most law today is not derived from a few hundred common law cases whether american or english cases. Most law today is derived from statutes that are enacted by congress, that are enacted by state legislatures. So our focus this part simply in part simply has to shift away from the courts as the originator of law and to, instead, our elected representatives as originators. We have to become less court focused and a little bit more legislation focused in our orientation toward law. Second, the curriculum that we still teach is the required firstyear curriculum, it was put together at a time when most law was domestic. If youre going to become an american lawyer, you these to learn u. S. Law and maybe some law at the state in which you intend to practice. These days i think it would be tantamount to pedagogical malpractice not to familiarize law students with institutions of International Law both public and private. That just wasnt on the agenda at the time when the 20th century u. S. Legal curriculum was set. And there are some other differences and some other changes as well. I do also think that the Law School Curriculum that was set in the teens envisioned a kind of practice that was very learned and very bookish and, again, very set on the knowledge ask the reasoning skills and the reasoning skills that could be acquired through internalizing and really grappling with this set of common law cases. I think that today law schools can and should be more ambitious. Lawyers need to know more than how to reason through some logical puzzle that follow from a few cases. Lawyers, when they graduate from law school, i do think should be at least introduced to some of the challenges that are going to face them in practice beyond just the intellectual challenge of coming to grips with legal principles. On the other hand, law is really complicated and hard, and if we go too far toward the end of inculcating skills and even inculcating values in students, we will be letting go of the goal of inculcating a large body of legal knowledge. And the main task of the law school has to remain that. We have to educate students over a wide range of legal areas. Ask that requires teaching and that requires teaching them an awful lot of of law. And so the more resources we put into doing other things, the more we take away there that central task. From that central task. Host robin west, if you could start a law school, how would you structure it those three years, and would it be three years . Guest oh, i think it would be three years. I think that the reform suggestion that we cut to two is certainly well intentioned. Its aimed at trying to cut way back on the cost of Legal Education for law students which is a terrible problem these days. But the problem is not that law school is too long. If anything, the problem is that law school is too short. Theres an awful lot to teach and communicate in tree years. I dont think it can be done in two. Hi ideal law school my ideal law school would be different from the current model but not radically different. I do think the first year should be dedicated to teaching these required courses and teaching the required common law courses. I also think, though, that at least half of the first year should be dedicated to teaching required courses that focus on public law areas and on areas of law that are derived directly from statutory sources rather than areas of law derived from common law. Thats the first year. In the second year, i think that law schools should and could strongly recommend to students a certain curriculum. Right now law schools dont. The first year is required, the second and the third years are almost entirely or entirely elective. And that leaves students really flownlderring. It floundering. It also doesnt reflect well on law schools. The curriculum that a law school requires or recommends is the law schools statement about what a lawyer should know and what a lawyer should be and to some degree what the law should be. And by saying its all up to you, just treat it as a menu and take whatever you want to take depending on what time you want to get up in the morning and what time what your work schedule will permit, etc. , is to say that the law school really has no view on that, no view on what lawyers should know beyond these required courses of the first year, much of which has thousand become marginal orer relevant to most lawyers practice areas. So i do think we should include in the second year quite a few more either required or heavily recommended courses including things like Corporate Law which is not required anywhere that i know of but which is absolutely central to the way that law and resources are organized in this country for better or worse, tax law likewise is not required anywhere but certainly it ought to be. Its one area, its the one place where we do societally think about issues of social justice and how we distribute resources. Theres very few schools that actually require an International Law course. And be there are very few, if any, schools that i know of that require a course in basic theories of justice which i think should be required or at least haley recommended everywhere. Heavily recommended everywhere. So in the second year, i would put a number of courses that reflect the school or institutions view of what all lawyers should know. I call this a unitary view as opposed to a bifurcated view because i think that the law school can do this. The law school can, if the faculty think about it, just focus on it, articulate what it is that that school thinks the lawyer should know and then should require or recommend that students take courses to fill out those, to meet that end. And then in the third year i would suggest that students focus in on a specialty if theyve hit on one east through their either through their studies or through their summer employment, and then at some point in the third year also take some sort of experiencial learning course, either a clinic or exalternativeship or what we call here a pact couple that will at least introduce them to some of the challenges that they will face in practice in that area theyve chosen, and then the rest of their third year should be devoted to electives. Students everywhere, i think, should take some course that introduces them to the interdisciplinary study of some area of law, either a law in social Sciences Class or a law in philosophy course or a law and humanities or law and economics, legal history. Something to get them a broader cultural appreciation of how law fits into our, into our collective societal knowledge. So i would recommend that all students do some sort of law, interdisciplinary legal studies course as well. But the main differences i would make would be to require or recommend courses in the second year and to some degree this the third year in the third year such that the schools curriculum reflects a sense of what all lawyers should know and these to know. I would not depend on the school to fully train lawyers. Thats a popular recommendation these days. I think that its, i think that its, um, not well advised. I dont think its what law schools can do very well right now, and if we refashion law schools so as to do that, we will be giving up an awful lot thats of value. I think its a Great Service to the country and to future client that is we aim to educate lawyers and not simply train them. Host whats your solution to too many lawyers . As you say . Guest well, the law schools these to quit admitting so many law students, thats the obvious solution to that problem. Its an obvious solution. Its taking people an awfully long time to get there. But we are getting there. Law schools are shrinking. I havent looked at the numbers this a while, but im sure its over half of law schools in this last admissions cycle took in fewer students than they did the require year. And so that will address the problem over time. It may be that some schools will close. No school to date has closed, but that might be in the future. But whether or not thats the case, the law schools that remain for the most part have to start taking in fewer students. We cant keep graduating students knowing that a healthy percentage of them, a significant percentage of them are not going to be able to find jobs as lawyers. Thats just unacceptable. Its unacceptable both as a financial model, but its also unacceptable morally. And i think the law schools are coming to grips with this now and are taking some steps to correct it. Shrinking your student wed, of course, means you have to find ways to shrink your costs because youre giving up a significant amount of revenue. And so thats the, i mean, thats the economic challenge facing law schools, is figuring out how to cover these costs with less revenue. Host by fewer student, does that mean a more elite core of lawyers . Guest well, i dont think that it should. As you may know, other reformers have suggested splitting the Legal Academy into two discreet kinds of law schools, elite law schools that will follow this academic model that all law schools strive to follow now, and then the training law schools that will aim solely to train lawyers for practice which they claim can be run on a cheaper model just using nontenure track professors. No need for a library, no scholarship, etc. That would create a very cleanlybifurcated profession of elite lawyers on the one hand and everybody else on the oh. And i think and on the other. And i think that would be very unfortunate. It would just be sad. Theres no need for that. One of the virtues i think right now of the Legal Profession is that its a unified profession, that there are, of course, lawyers at the very top of the income scale who are doing fantastically well for themselves, and it is pyramid call, and thats unfortunate. However, all lawyers by virtue of sharing in this common experience of a Legal Education have an awful lot this common with each other. That makes the Legal Profession itself, i think, somewhat democratic. I think it also contributes to our democracy, to to our national democracy, that we have an ideal of what Legal Training should be and Legal Education should be that really is the same, largely the same for everyone regardless of this many and regardless of family background, etc. So i dont want to give up on that. Now, shrinking the law schools, i think, doesnt run the risk of creating a more elite profession. Whats created an elite profession so far has been this phenomenon of too many law schools that cost too much money to go, right . So increasingly its only fairly welloff people that can afford to go to law school. Law schools have to do two things, we have to shrink, and we have to bring the tuition down, we have to bring the cost down. That will counter this trend toward an elite profession and toward a profession thats too heavily tilted toward the wealthy. Host subtitle of teaching law is justice, politics and the demands of professionalism. Could you describe what you mean by that subtitle . Guest well, the book takes on those three topics in three substantive chapters. So in one chapter i argue that law schools have failed their students and failed the society by not centering on justice as a topic. Of scholarship and as a topic of teaching. We teach law, we teach next to nothing about what justice demands and requires of law. So we need to address that, and i think we need to change it. I think we can do that without radically upending law school as we know it. Politics, likewise, for various reasons. Law schools and law faculty have neglected to study the what i call the political root of law. We study law as though it just sort of sprang from mushrooms or whatever. Law, in fact, is the product of politics. And so i think we need to study politics. By not studying it, i think we contribute to the american tendency to denigrate politics. We, in other words, in law schools we tend to think and i think we tend to teach that law is the domain of the rational and the principled and the thoughtful while politics is the domain of the emotional and the sentimental and the meanspirited, etc. And this is not true of either realm. But its also, but it also fails to capture the connection between the two realms. So partly, again, this is simply a matter of asking law faculty to not be so courtcentered in our teaching and to focus instead on the legislative root of most statutory law, but more generally its about thinking through a little bit more clearly the connections between law and politics and the, and the symbiotic relationship between the two realms. The demands of professionalism is what we have been talking about. We need to rethink the relationship between the Legal Academy and the Legal Profession in a way that, this a way that will in a way that will serve both. The legal acad hawaii, i think, has faulted and for the most