Thin Skins

August 3rd, 2015 / By Deborah J. Merritt

Appellate judges sometimes complain about the “negative bias” in law review articles. “Scholars don’t write about what we do right,” the judges grumble. “They only write when they think we’ve gotten something wrong.”

I can think of exceptions to this tendency, but I think the judges are largely right. There’s not much point to an article that praises a judicial opinion; the opinion speaks for itself. Colleagues and tenure reviewers, moreover, won’t be very impressed by an article that simply extols a court’s reasoning; we want evidence of the professor’s critical thinking. At the very least, that means the scholar should suggest an alternative ground for the court’s decision. Academic scholarship slants toward the critical.

The same is true when the media cover legal education, but law professors don’t like it one bit. In faculty lounges and blogs across the country, professors complain about the media’s bias against legal education. The press occasionally carries a story that paints law school in a positive light, but most of the stories are critical. When it comes to criticism, legal educators seem much better at giving than receiving.

Is This Different?

Is there a difference between the negative bias in legal scholarship and the critical slant in media reports about legal education? Some professors suggest that the media have a venal motive for their negative stories: criticism sells. That motive, however, is not so different from the one that motivates us as scholars to criticize more often than we praise. Our payments are tenure, promotion, respect–and the increased salaries that flow from those reputational enhancements. Even if we care more about reputations than dollars, we have personal motives that push us towards criticism.

Other professors might distinguish our academic critiques from media “hatchet jobs” by pointing to the conflicting policies that surround important judicial decisions. Resolutions that balance competing interests are inherently debatable; scholars perform a worthwhile public task when they examine the downsides of a court’s balance.

Legal education, however, also balances competing priorities. We weigh the time devoted to scholarship and teaching. We decide how much to invest in clinics and how much to allocate to seminars. We make curricular and cultural choices that signal the relative importance of serving business clients and individual ones. We determine whether to give scholarship dollars to students with high LSAT scores or to those with few financial resources.

These decisions affect the public interest: They shape the type of lawyers we graduate, the clients they choose to serve, and the skills they bring to that service. We may think we’ve struck all the right balances, but the public may not agree. The policy choices we make are as debatable as those that courts adopt.

“But,” some of my media-irritated colleagues complain, “the media don’t know anything about legal education. They write–and criticize us–out of ignorance. When we write about judicial opinions, we draw upon our extensive knowledge of the law.”

This is a fair distinction, but it points to the importance of media criticism rather than its unfairness.

The Duties of an Autonomous Profession

Law is an autonomous, self-regulated profession. We decide what counts as law practice, who gets to engage in that practice, and the type of education those practitioners receive. The public has almost no role in deliberating or deciding these matters.

The legal profession’s autonomy is particularly strong, because courts determine most of the rules that govern us. Judges are lawyers; most of them come from law practice, and many (especially in states with electoral systems) return to practice. Doctors must submit to regulation by judges and legislators, both groups that lack medical credentials. We submit primarily to regulation by our own kind.

Law schools benefit from two rings of autonomy. As educators, we vigorously defend our autonomy against the practicing bar. We claim superior knowledge of how to educate future lawyers, and we regularly assert that superiority in debates with the bar. Even when we succumb to pressure from practitioners, however, we still operate within the protected walls of the legal profession. Prospective clients and the public have very little say in what we do.

Members of the public have just two ways to affect the policy choices made by lawyers and law schools. One is through their purchasing power. If potential clients dislike the services provided by lawyers, or the prices charged by those lawyers, they can bargain for better/cheaper services, forego those services, or substitute services from unlicensed providers. Prospective law students, similarly, can negotiate for higher scholarships or pursue alternative careers if they don’t like the options offered by law schools.

All of this is happening in today’s market, but these consumer choices are a blunt instrument. Lawyers, after all, define the “practice of law” so we have the power to close down unlicensed providers. Law schools, meanwhile, offer the sole gateway to the profession in most states. These monopolies–over both services and education–limit the power of market signals. We may be feeling the market’s pinch in law practice and legal education, but the pinch would be stronger without our professional protections.

Equally important, market forces can’t tell us why prospective clients or law students are dissatisfied. Is it just a matter of price? Or do they want services/education in a different form?

To raise these issues, the public must turn to its second avenue for affecting policy choices in legal education and the profession: public criticism. Through blogs, mainstream media, and cocktail party conversations, the members of the public tell us their concerns about legal services and legal education.

Some of those concerns are misplaced; others suffer from ignorance. Most of us are guilty of the same faults when we criticize medical care, software design, or highway construction projects. Experts in every field put up with a lot of flak from lay consumers–who often compound their insults by acting as if they know more than the experts.

The flak, however, includes key insights–and it’s our duty as professionals to sort through the criticism for the points that matter. Experts know a lot, but they don’t know everything: Our very expertise can blind us to consumer needs and avenues of innovation. Self interest and professional pride can also make us resistant to calls for change. These dangers are particularly severe in a field–like law–where professionals regulate themselves.

Sociologists argue that professionals have a duty to accept public criticism with grace and thoughtfulness. That duty stems from our underlying societal bargain: We receive the power of self regulation in return for a promise to exercise that power in the public’s interest. We can’t fulfill our terms of the bargain if we’re not willing to listen to public criticism.

Responding to Criticism

I agree with the sociologists. As members of a self-regulating profession, we have a duty to listen carefully to public criticism. We don’t have to embrace every critique, and we certainly should correct misstatements. We should also explain why we do things the way we do, and we can invite the public to engage in dialogue with us.

But let’s stop whining about the criticism itself–just as most savvy judges have learned to hold their fire in the face of law review criticism. Public criticism is a sign that we matter. People care about the structure of the legal system, the accessibility of legal services, and the quality of the lawyers who serve them. We should care enough about what they think to listen courteously, clear up misunderstandings, and (every now and then) admit that they have a point.