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In The Magic Mirror, Kermit Hall and Pater Karsten write:

The [Plymouth] colony’s first trained lawyer, Thomas Lechford, did little to instill enthusiasm. He was disbarred for trying to influence a jury. Antilawyer sentiment was pervasive elsewhere as well, and the “ancient English prejudice against lawyers secured new strength in America.” The framers of the Fundamental Constitutions of the Carolinas in 1669 declared it a “base and vile thing to plead for money or reward.” Connecticut and Virginia during a portion of the seventeenth century prohibited lawyers from practicing. Early lawyers were often laymen helping friends or women serving the legal interests of absent husbands. (Hall 21-22)

Still, despite the opposition to lawyers — perhaps arising from the complex and seemingly arbitrary rules of the early common-law system — the complexity of colonial legal life (each part of the colonies tended to have its own legal rules which more-or-less approximated some part of the very complex English system), and the importance of smoothing out trade, meant that lawyers became increasingly valued. Although there were no law schools, a “rough apprenticeship” process, along with self-teaching, emerged to prepare attorneys.

But unlike in England, according to Hall and Karsten, there was never sufficient legal business to justify splitting the profession into barristers and solicitors. Instead, “American lawyers survived as generalists” (Hall 22).

It was not until after the Revolution that some moves to formalize legal training emerged, but even though Harvard, Yale and Columbia started legal training in the mid-nineteenth century, it wasn’t until the late nineteenth and early twentieth century that the law school system as we know it today developed.

At least, don’t go to grad school in the humanities. That’s the message I’ve been hearing from a number of sources, including this recent article from The Chronicle of Higher Education:

It’s hard to tell young people that universities recognize that their idealism and energy  —  and lack of information  —  are an exploitable resource. For universities, the impact of graduate programs on the lives of those students is an acceptable externality, like dumping toxins into a river. If you cannot find a tenure-track position, your university will no longer court you; it will pretend you do not exist and will act as if your unemployability is entirely your fault. It will make you feel ashamed, and you will probably just disappear, convinced it’s right rather than that the game was rigged from the beginning.

via Graduate School in the Humanities: Just Don’t Go – Advice – The Chronicle of Higher Education.

But here I am, anyway, in a PhD program in history. What makes me think this is a good idea despite all the evidence to the contrary? Or am I simply delusional? (Probably.)

Recent law grads (me included) might suggest that going to law school isn’t such a good idea either, although that seems more to be a function of the current economic situation that a long-term trend, even if the legal profession is going through a “correction.” Long term, there will always be a demand for lawyers, in some form or another. (Debt is another issue that needs to be addressed.)

But a humanities graduate program is different. It’s professional training for one purpose: to do research in the humanities and, to a lesser extent, to teach in the humanities. What’s more, fewer and fewer professional positions exist, and those that do are increasingly adjunct positions with limited job security (i.e., no tenure  —  but then, who else in today’s workforce benefits from anything like tenure?).

The humanities system (at least in large public universities, which provide the bulk of positions) is set up, many say, to exploit cheap grad student labor in order to teach over-enrolled undergraduates in an increasingly under-funded educational system. The role of the traditional humanities professor is dying out.

True or not, social science or not, job prospects as a history professor are certainly difficult. So why am I in grad school?

First, I chose to focus on science, not general history. Rightfully or not, a focus on science tends to equal greater job and funding opportunities.

Second, I am not giving up law to focus on history. I fully intend to practice as a lawyer at least part time. (Diversification is important as much for individuals as for corporations, I believe.) So even if I can’t find a position as a tenure-track professor of history, I still have my law degree to draw on. I also spent 10 years in IT, and have that to draw on too.

Third, the contacts I am making through the program are valuable in any field. I am, for example, volunteering for committee appointments with senior faculty and administrators.

Fourth, I needed family medical insurance (if I lived in Canada or Europe, this wouldn’t be an issue) and the ability to spend more time at home than a first-year associate is allowed. Grad school, unlike law school, is funded and paid for.

So am I crazy? I don’t think so. But I also don’t expect to have an tenure-track position waiting for me at the end, nor is my self-worth dependent on that.

I’ve been debating the difference between law school and grad school since I started a PhD program this fall. (I’m talking about the humanities and social sciences  —  I don’t know if this applies in other fields!) Granted, grad school is a huge amount of difficult and complex reading. Since it’s essentially professional training for academics, it also means learning a new working environment, a new kind of jargon, and a new bureaucracy. What it isn’t  —  and what law school is  —  is a whole new way of thinking about and approaching the world.

Now that it’s exam season, and I’m facing the prospect of reading 100 Intro to IP exam answers, I confront again the great puzzle: What is it about the Law that is so difficult for people to “get”? I think I have the answer to that. The Law is hard  — uniquely hard, I’m tempted to say  —  because you demonstrate your expertise not so much by displaying what you know, but by displaying what you don’t know.

via The Volokh Conspiracy » Blog Archive » Why Studying Law is So Hard.

This captures at least one aspect of the alternative way of thinking that’s required by studying law: issue spotting. That is, finding and focusing on what you don’t know instead of what you do. The entire 1L year is like this: shaking up your analysis and forcing you to approach problems in a different way.

Yes, grad school requires learning new approaches, new theories, new ways of thinking. Some of this even makes your head spin. But it simply doesn’t require the same radical realignment that law school does. What you learned as an undergraduate applies to grad school  —  but not so much to law school. It’s like starting a new job, versus emigrating to a new country.

And that’s why I think law school is harder than grad school.

Law school’s pedagogical approach does not necessarily reflect this ultimately practical goal, though, and its focus on the so-called “Socratic method” and on appellate case law is, many argue, an ineffective means of training effective lawyers:

Martha Minow, the new dean of Harvard Law School, where the Langdellian method of teaching from appellate opinions was developed, has called for “another case method” closer to the one used in business and public-policy schools, and consistent with W and L’s approach and Carnegie.

PrawfsBlawg: What’s happening in legal education?.

In contrast, graduate school is eminently suited to its goal of training new academics. We read other academics, write like academics, and teach and grade like the teachers we expect to be. Very disconnected from the “real world,” perhaps, and often overly bound up with theory  —  but still, if one is aiming to work in this area, the training is, in a very real sense, practical.

Law school, though, while pushing the practical, does not teach it. At most, one might argue that it teaches a kind of thinking  —  a very critical kind of thinking  —  but it does not teach students to practice law (nor to teach it, for that matter).

I’m curious to see how my reflections on law school education change as I pursue my PhD  —  I expect I might feel more positive about it as more time passes. We shall see.

Randy Picker responds by saying:

We should review how the public domain works. The public domain is sold every day. Every time you buy a copy of Hamlet you are paying for a public domain work. I do H.G. Wells’s The War of the Worlds in my copyright class on this starting with Project Gutenberg  —  free, of course  —  and then heading to Barnes & Noble and Amazon, where the prices range from $2.50 to $13.95 see slides 3 to 13. That is precisely the nature of the public domain: anyone can use it for whatever they want, including selling it. The AP is fully within its rights to sell public domain content just as Amazon does every day.

via The University of Chicago Law School Faculty Blog: The Associated Press: Selling the Public Domain?

To restate: there is absolutely nothing legally wrong with the AP licensing or selling public-domain content. To paraphrase concepts from the open source world, public-domain content is free (as in speech, “libre”) not free as in beer.

As Picker puts it, “Public domain content is outside the copyright system. Again that is its nature.”

You have no right to access of public-domain materials (perhaps unfortunately). You have no right to get them without paying. Instead, such materials are free for anyone to use in any way they wish. The AP can sell the material. You can sell the content. Anyone can do with it what they wish.

(A side note: a license by the AP to such content may be invalid, in the sense that once you have it, you can do with it as you wish  —  although potentially you may still breach a contract you have with the licensor. Picker, for example, writes, “Ordinary rules regarding contracts and licenses should apply to circumstances under which someone is given access to public domain content.” I can envision counterarguments. In other words: it’s complicated. Thus the existence of lawyers.)

Bizarre? Unfair? Strange? Perhaps. But consider that the protections of copyright are a modern addition to the world. Pre-18th century (to grossly simplify things), if you sold your manuscript, you sold the “copyright” as well. All intellectual creations were, in a sense, in the public domain (although the concept didn’t quite exist  —  without modern copyright, there is no concept of “public domain” either  —  there is simply one state, not too).

Modern copyright changed this, and arguably encouraged creation  —  but it also locks up works in various ways as well. Thus the need for a balance, I believe, between the protections of intellectual property (which is not quite like ordinary property, which is why you only “infringe” IP) and the dizzying freedoms of the public domain.

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• Associated Press will sell you a license to quote the public domain (boingboing.net)
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BizOp News asks the question:

Is the Kindle DX: Amazon‘s 9.7″ Wireless Reading Device (Latest Generation) a disruptive device for the textbook market?

via The BizOp News | Due Diligence : Can Kindle Replace Text Books?

His main argument is that “Kindle threatens the established textbook market, because textbooks can be treated as software, and rental items. You only want the text for one course, you rent it.”

He believes, along with others, that Amazon will likely act to push legal textbook authors to publish ebooks – but they will be accompanied with licensing and DRM that will ensure their limited distribution and use and, presumably, undermine the used textbook market as well.

I believe the Kindle – and perhaps other devices like it – may indeed revolutionize the market. I am not convinced that all textbooks are amenable to an electronic model in terms of ease of use, but that may not stop the attempt by Amazon to push it.

To be honest, I suspect the entrenched nature of law and law schools will prevent Amazon’s complete success in any rapid fashion – I suspect a complete changeover to electronic books will simply run into too much resistance.

I also believe that “renting” textbooks stands a decent chance of generating a backlash against the current ebook licensing approach, as students (never ones to enjoy restrictions, especially ones that cost them money) discover they can’t pass on their textbooks to others by selling or giving them away.

Still, Amazon still has a chance to disrupt the market without such a backlash – if the purchase price paid by students for books justifies the more limited rights they will enjoy. If Amazon can pull it off, everyone will benefit – if they give in to publishers and keep prices artificially high – we will see a backlash and disruption of a different sort.

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• The Kindle DRM Kerfuffle: A Case Book Author’s Perspective (professorbainbridge.com)
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Facebook

Facebook is a social networking Web site focused on connecting people with each other. Many of us have now experienced the joy (and occasional pain) of (re-)connecting with people from high school, college, or law school through the site.

Many people have decried the negative aspects of Facebook in the job search, primarily the ability of potential employers to find personal information (such as drunken party photos, political/social leanings, etc.) out about you through the service. Although this can certainly be a problem for a naive individual, it should not keep you from using the service, provided you: (1) do not post photographs (or better yet, do not participate in situations) that you would derail your chances of employment (drunkenness, drug use, etc. – this is particularly true for legal professionals) and (2) keep your personal life confined (through various Facebook limiting mechanisms) to those who know you. If in doubt – don’t put it online.

From a job seeking perspective, Facebook will not find you a job. It is not Monster.com or similar job search site. Instead, it is an extension of old-school networking – meeting people, connecting with people, sharing with people. Use similar approaches on Facebook that you would use in person, but remember: Facebook is focused more on personal connections that professional ones, so treat it accordingly.

• Do not attempt to “friend” business connections who you barely know via Facebook. (Save those for LinkedIn, next on the list).
• Do let your actual friends know via Facebook that you are looking for a job.
• Do search for people you may know who do work like you wish to do, or who work where you want to work. You may be surprised that you actually know someone who can put in a good word for you.

LinkedIn

LinkedIn is like Facebook for professionals, minus the games, the sharing, the pictures, and everything else that makes Facebook so “sticky.” But these limitations are its biggest asset, because they turn it into a truly professional zone. Everything you put on LinkedIn should be professional, with only a passing nod to your personal life (to make you real). In terms of posting information to LinkedIn, it is best to think of it as an in-depth, network-enhanced resume. It is not for arringing to meet friends at the movies, nor for sharing your vacation pics to Cancun.

Unlike Facebook, LinkedIn is the perfect place to connect with business acquantances who you do not know well. In this sense, think of LinkedIn as your social Rolodex of business contacts, with recirocal connections, recommendations, and easy searching.

• Do connect with those you meet.
• Do not connect with people you have never met, unless you arrange an introduction (supported by LinkedIn). To do otherwise is to invite trouble and do your reputation more harm than good.
• Do update your status on LinkedIn with professional information related to your job search.
• Do search for companies and look for people you know there.
• Do pay attention to “friend-of-friends” who you may be able to be introduced to through LinkedIn. This is a very valuable part of LinkedIn networking!
• Do get recommendations from current and former co-workers. A LinkedIn profile of an active job seeker with no recommendations is potentially problematic, as it suggests that no one wants to recommend you!
• Do keep your profile updated with current information.

Plaxo

Plaxo is in some ways like LinkedIn and Facebook: it connects people with each other. It has a more professional bent than Facebook, and in that way is more similar to LinkedIn (including an online profile hat is more like a resume than Facebook’s, for example). Its current incarnation is more focused on “lifestreaming”: gathering up and synchronizing your online life in one place:

Plaxo is about synchronizing all that’s important to you in one single place. It’s about staying in touch with all those who you care about… your family, your friends and your business contacts. With Plaxo’s Pulse, we keep you up to date with what your friends, family and Business contacts are up to.

• You can Share photos, videos, reviews and more…
• You can share content from the websites you use like Flickr, YouTube, Digg and a growing list of activity stream sites you can activate.
• You can represent yourself on the web with your own profile. Choose what to share and with whom.
• And with the Plaxo Address book, get the information you need for the people you know and Sync it to places you already use.
• You Plaxo calendar syncs with Yahoo!, Gmail, Outlook, Mac and a growing number of sync points to make sure you don’t forget what you’re doing.

Plaxo is all this in one place and that’s why it’s the most efficient and fun place to be in. And most important of all, you decide who gets to see what.

It is worth it to establish a Plaxo profile while job searching, and keep it updated. (Not having recommendations on Plaxo is also less of a problem, as long as you have them on LinkedIn.)

Plaxo’s aggregation support for your online activities is powerful, but has the potential to mix your personal and professional lives together. Thus, be very careful of this.

• Do establish and maintain your profile.
• Do use the aggregation and synching tools, if they are useful to you.
• Do not mix personal and professional updates.
• Do use Plaxo’s tools to contain your personal updates to your personal friends.

Twitter

Twitter is a newer contender to the social media landscape. It permits posting short status messages, which may include links to articles, blog posts, pictures, etc. In a professional context – remember, you are job seeking – these status messages should stay away from “crazy party last night” and steer more towards the “excellent article, I recommend you read it.”

Unlike Facebook, LinkedIn, and Plaxo, connections in Twitter are one way: you can follow people, or they can follow you, but reciprocity is not required.

To find useful people to follow, look for those in your field. A good place to start is LexTweet, which aggregates legal Tweets – consider joining as well and participating.

My recommendations:

• Do read about how others are using Twitter professionally.
• Do keep your postings professional.
• Do mix in some personal updates to be “real,” but remember – a potential employer may be reading them, so be judicious.
• Do “add value” by Tweeting useful information.
• Do not use tools to mass add followers, or similar “spammy” behaviors.

JD Supra

JD Supra is a different alternative to the above sites. Unlike the four above, it is focused exclusively on the legal community:

As a legal professional, you post your court filings, decisions, forms and/or articles to JD Supra’s database, a free tool for legal research. You also create an in-depth professional profile that is freely available simply by browsing or keyword searching, or via link from any of your posted documents.

A profile on JD Supra provides a useful addition to your LinkedIn and Plaxo profiles – but that’s not the core value of the site. The main point is to demonstrate your value to potential employers (and clients, for that matter) by sharing your work via JD Supra: filings, briefs, articles, etc.

At first glance, it may seem like you are giving your work away for “free” – but in reality, you are receiving value: respect. Your value as a lawyer, after all, does not come through directly selling your prior work – but rather in using your prior work to sell yourself.

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The trend in hiring law professors with graduate training in other disciplines as well as law degrees is not new; it’s been underway at least since I was a student (1988-1991). Some of the best classes I took were with individuals who had such backgrounds. But the emphasis has become even more intense in recent years. It is no longer considered obligatory to put in a few years doing actual legal work, before signing up for the AALS faculty recruitment conference.

An interesting discussion of the shift in law school hiring away from those with just law degrees towards those trained in other disciplines as well. As a soon-to-be-graduating law student about to go into a PhD program with a possible future goal in academia, this is of interest to me. I intend to get legal experience as well, but likely not the law firm path of many current law school professors. It will be interesting to see how things develop over the next few years.

The institution of law reviews has always been a great source of puzzlement to the Law Blog. As a 2L, the sunny afternoons we labored away blue-booking articles were—we’re pretty certain—among the most ill-spent hours of our law-school career. And yet we can’t deny the symbolic importance of law-review membership. Just look at the on-campus interview guide of any non-tier-one law school. Many employers are clear: No law review? No thanks.

I would comment, but I have to get back to blue-booking for my journal.

Interdisciplinary studies are currently the rage in legal academia. An increasing number of law schools are touting their interdisciplinary programs, which include offering courses from other academic disciplines (economics, statistics, anthropology, etc.) in the law school curriculum, creating law and social science institutes of various sorts within the law school, offering joint JD/PhD programs, and hiring JD/ PhD faculty.

It seems like an irresistible movement with the potential to transform legal academia. But based upon the historical evidence and the nature of legal practice, I’m skeptical.

Personally, I find interdisciplinary approaches obvious and inevitable, and hardly revolutionary. Transformative? Perhaps. But then again, the law has always been (and continues to be) interdisciplinary (the facts of every case involve other disciplines, after all), so what is so drastic about allowing law students to explore that as students?