Two Cheers for Indentured Servitude!

Yesterday, Mike asked the following question about legal education and the profession:

As I read these, they take as premise the proposition not merely that law schools should change how they teach because practice-based teaching is more effective, but that law schools need to fill a training gap created by the growing unwillingness of many law firms to train new lawyers themselves.

Why should that latter proposition be the case? It is reasonable to argue that clients should not be forced to bear the cost of training new lawyers. But why should the profession not expect law firm partners to shoulder that cost ­ rather than passing some or all of it back to law schools?

I think that part of the answer lies in the nature of the employment contract. Pushing the cost of training back on law schools is slighlty misleading. We are really talking about pushing the costs back onto students. One reason that law firms may be reticent about lavishing resources on the training of young lawyers is that they have few guarantees that they can recapture the upside of the training that they lavish. There are few ways of stopping young lawyers from taking the training and leaving for greener pastures, giving firms (and associates) an incentive to free-ride on the training provided.

Here, I think that it is useful to contrast the legal profession to the armed forces. The military spends an enormous amount of money training its recruits. On the other hand, the Army has much stronger remedies against employees who try to walk out on their employment contracts. Go AWOL and the MPs can track you down and throw you in the stockade. On the other hand, the system produces some superb training. For example, my understanding is that the airline industry is largely dependent on former military pilots to fly its jets. The reason is that to achieve the levels of proficiency that the airlines (and the FAA) demand a pilot must have an enormous number of flying hours, and as a practical matter it is nearly impossible for a student pilot to bear these costs individually. In other words, it is the remedial structure of the military contract that provides the intensive on-the-job training necessary to produce superbly trained pilots.

Perhaps we need something similar for lawyers. Apprenticeship indentures anyone?

[crossposted at]

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15 Responses

  1. Frank says:

    For an interesting parallel, I believe health law scholar Ben Falit has promoted the idea of having long-term contracts between insurers and insureds. That way the insurer gets the benefits of providing preventive care now–they pay out less claims in the future.

  2. 2005 grad says:

    Apprenticeship indentures anyone?

    It’s called the third year of law school. Or, for those of us with student loans, it’s called the first 2-5 years of private practice.

    The following question strikes me as absurd:

    But why should the profession not expect law firm partners to shoulder that cost ­[of training] rather than passing some or all of it back to law schools?

    I can think of two reasons: (1) because it’s called a law school, and we at least keep up the charade that people go there to learn things in preparation for becoming lawyers of some kind, and (2) law students pay tuition to the law schools.

    Perhaps I’m missing something…

  3. LawProf says:

    Maybe the problem is two-fold:

    1. Law firms pay new graduates (who know nothing about the practice of law) exhorbitant sums of money. If, instead, the law firms paid starting associates a lower wage that might compensate them for a portion of the cost of the training.

    2. In a professional field like medicine, doctors go to medical schools and then do grueling residencies. Why is it inappropriate for lawyers to go to law school to learn to “think like a lawyer” and then do an internship after graduation?

    Do we really want law professors who have spent so much time in the ivy tower that they are disconnected from the “practice” of law to be teaching law students how to practice?

    Law schools do need to change in some respects. But, getting rid of the theory in favor of more practice just seems to be a way to give the students the fish without teaching them how to fish. At some point, these students will be starving.

  4. JrL says:

    Has anyone looked carefully at the results of the Candaian practice of requiring new law grads to “article”? I know my law school classmates headed home to Canada to practice saw it as something akin to involuntary servitude, but it could at least be a model worth comparing to the one we currently have in the U.S.

  5. 2005grad says:

    In a professional field like medicine, doctors go to medical schools and then do grueling residencies.

    Right. After 4 years of medical school, many of these people are very competent doctors. Med school is harder to get into and more grueling than law school, yet residents are worked like law firm associates and paid like temps. I wonder if medicine needs to be more like law in this regard, rather than the reverse.

  6. Larry Rosenthal says:

    I suppose we should not be surprised that law professors without the skills or experience necessary to teach students how to practice law manage to conclude that law school need not impart practical skills. In any other profession, we would say that such scholars labor under a conflict of interest.

    Whatever the merits of Professor Oman’s view when it comes to students who join major firms well positioned to aborb training costs, this view has proven a disaster for government and public interest law firms. The indifference in the academy to this consequence of the current fashion for theory in legal education is truly remarkable.

    Larry Rosenthal

    Chapman University School of Law

  7. Nate Oman says:

    Larry: I don’t deny that many students are ill served by the current system. My point is not that everything is hunky dorry. Rather, my point is that the solutions may lie in reconfiguring entry into the legal profession so that there is some required period of apprenticeship. This needn’t be something that only big time law firms do. I would point out, for example, that English barristers are barred from forming law partnerships and accordingly every barrister is a solo practioner, yet they nevertheless must pass through a system of pupilage. It is a mistake to think that apprenticeship equates to in-house training at a big firm.

    Furthermore, if you look at my first post, you’ll see that I have a deliberately capacious notion of what counts as “theory” including a lot of stuff that is out of fashion in the current legal academy. My point is that legal education ought to be a joint project between the profession and the law schools, with each focused on what they do best. This necessarily means that I think the legal profession should be organized differently than it currently is.

  8. Deven says:

    Dear Larry,

    Is part of the concern that the big pay associate positions don’t go to that many law students in general? So when one enters another area of practice certain training is missing, correct? As I suggested in a different post, I don’t think the practical side of training is a bad thing. The question may be where does it best occur? If you know of a professional school that gives great training (and, no, medical school is not as good as people think though it is arguably better than law schools as far the formal aspect of the clinical years go) please share that information.

    Now if one thinks that medical residents should be paid more, that may be true. Still there is the training AFTER medical school issue. In other words, training off the job is not something that seems to have been done well yet. It may be possible but wht would that look like?

  9. Sean M. says:

    Prof. Oman,

    If we were to embrace this proposal of indentures, would you support shortening formal law school? In other words, would you support traditional law school becoming merely the Big Six of One-L year (Contracts, Criminal Law, Civil Procedure, Property, Torts, and Constitutional Law) and perhaps Legal Research Writing, and then have tacked on pupilages?

    Or would you insist that law school remain three years with an apprenticeship added to it?

    My Wikipedia-level understanding is that barristers in the UK attend an undergraduate program in law, attend a Bar Vocational Course for one year, and then a year of pupilage. This makes for six total years of education from start to “out on one’s own” as opposed to our seven years of education (which, at the end, people claim attorneys are still unprepared).

    I like your idea, but it may need to come with a reduction in the amount of formal schooling.

  10. lawyer says:

    1. Why resolve this issue by rhetorical arguments from people with vested interests in the status quo? (I mean both the profs and the lawyers.)

    Why not give the consumers some choice? Let the students vote for more theory courses or more practical skills. Let the students vote for spending their third year in lecture halls or in paying jobs. Let the students vote for studying law in undergrad or in graduate school. The students, who are racking up $90K in debt, will have plenty of good reasons to choose wisely.

    2. Larry Rosenthal, your posts are always great reading.

    3. To the law prof who used the fishing metaphor, don’t you have it exactly, 100%, 180 degrees backwards? Practical skills courses *are* teaching students how to fish. Theory courses taught by people who never fished for a living are not.

  11. LawProf says:

    Interesting conversation.

    I am not sure who should make these decisions. It seems that everyone in the “know” (lawyers, law professors, judges, etc.) might have some conflict of interest. Allowing the consumer to decide seems like an silly thing to do. After all, are the consumers knowledgeable enough about the “right” method of legal education to determine what is best for them? What’s next, allowing patients to prescribe their own medicine?

    Larry’s comments about law professors not having the skills or experience to teach practice seems to have a bitter tone to it. Many law professors, including myself, have practiced law in the biggest and “best” (whatever that means) law firms in the country. Many of us have been partners at law firms as well (small, medium and large firms). It is just unrealistic to think that law schools can teach both the theory/doctrinal material and the practical pieces as well. And the students need both.

    Finally, as to whether I got the fishing analogy backwards, I do not think so. What students get from law school is the ability to think like lawyers. That is the teaching how to fish part — issue spotting, reading statutes, application of the rule. Anyone can teach a person how to draft a complaint from a form. But, when a lawyer is faced with a new issue, the most important question (to me) is whether they know how to start thinking about the solution.

  12. JrL says:

    “Many law professors, including myself, have practiced law in … law firms ….”

    When you say “many,” you mean there are “many” – perhaps hundreds? – among the faculties of law schools collectively, and not that most individual law schools have “many” professors with considerable practice experience? In fact, for the law schools I’ve observed most closely, there seems to be a strong bias against hiring professors with more than a few years of experience. Are you suggesting that my perception is incorrect?

    I think that the practice experience of faculty is an important part of this discussion. A dramatic move to practical experience during law school would, in my view, require faculties that are quite different from what I perceive them now to be. And not just in terms of hiring, but in terms of academic demands — i.e., a professor best suited for practical skills is more likely to be someone who has years of experience and whose written work is briefs or contracts than one who had a token trip through a large firm and whose written work is in law reviews.

  13. lawyer (again) says:

    1. “Allowing the consumer to decide seems like an silly thing to do.”

    Spoken like someone who knows he/she’s in a protected market! QED on my original point.

    2. “Anyone can teach a person how to draft a complaint from a form. But, when a lawyer is faced with a new issue, the most important question (to me) is whether they know how to start thinking about the solution.”

    We’ll have to disagree on the aptness of the metaphor. When we give someone a fish, we simply hand then final result with no input or work from them. Practical skills courses are, despite your rejoinder, the exact opposite. We let them struggle, fail, and try again until they learn how to do something. We teach them to fish.

    The most your rejoinder could prove is that it’s not easy to discern the dancer from the dance — in other words, background *for practice* and actual practice are necessary.

    Background for practice is, for example, “Civ Pro I” and “Civ Pro II.” A skills course would be a clinic or simulated training. I applaud both kinds of courses and have no doubt that students would choose them in large numbers.

    But notice how much of the law school curriculum falls outside of that. (And, remember, I fully support the professoriate’s desire to teach all the theory that the purchasing consumers demand after the students have been given a choice of theory or practical skills.)

    3. Finally, while it’s true that every law faculty has some former practitioners, whenever we hear that claim made we need to remember two years at Skadden or two years at the ACLU does not a practitioner make!

  14. Larry Rosenthal says:

    Students who spend three years of their lives and tens of thousands in tuition may think that the should not need an additional “required period of apprenticeship” before they are ready to practice law. In any event, while big firms effectively provide this “required period,” government and public interest law firms lack the resources to do so, and I don’t notice anyone else stepping up to the plate. Interesting that Professor Oman recommends “reconfiguring the legal profession.” That conveniently lets him pursue his personal interest in advancing his scholarly reputation — these days that generally argues for pursuing “theory” — while making the effective education of legal professionals somebody else’s problem.

    I suspect that the market will eventually produce at least a partial solution to this problem. Even big firms are becoming discontent with the current system. They must shoulder unprecedented salaries in addition to training costs, even while the proportion of associates who leave just when they are starting to become profitable increases as well. I suspect that the pendulum will swing when law firms begin to demand that law schools provide a better return their investments in legal education.

    Larry Rosenthal

    Chapman University School of Law

  15. SusanS says:

    You stirred up something here.