On law schools (part 1)

Earlier this year, San Francisco Superior Court Judge Curtis Karnow graced these pages with his view that law school professors are disconnected from the real world of law practice. Karnow, "Dissolving Legal Barriers," Daily Journal, Feb. 20, 2019.

Judge Karnow is right, more than he knows. Not being a law professor himself, he might not know why he is right.

Here are some insights -- from the inside.

I law-professed for about four decades. But I always felt like an outsider. I had no overwhelming desire to teach -- or to write scholarly articles. I'm embarrassed to reveal my true reasons for going into law teaching, but what the hell.

After law school, I clerked for a California Supreme Court Justice, then worked for one of the budding anti-poverty programs of LBJ's Great Society. I directed the Marysville Office of California Rural Legal Assistance (CRLA), represented farmworkers and other rural poor. Then I became the Chief Attorney of the National Housing Law Project at Boalt Hall.

That's where I met Roger Bernhardt, a visiting prof from Golden Gate University School of Law.

A couple of years later, when I was Director of Litigation at San Mateo County Legal Aid, Roger called me. "Come teach law at Golden Gate, Myron." I gave him my answer pretty quickly. "No way, Roger. I just turned 30. Teaching is for old guys like you. I prefer litigating for poor people. Call me back in a couple of decades."

He called me back the following July. I was about to brush him off again when I looked out my office window. It was a beautiful summer day. A day I could be playing tennis, or fishing -- instead of bottled up in a stuffy office.

Then it hit me -- the three key perks of teaching: June, July, and August! And a teaching schedule would also give me time during the school year to take pro bono cases and litigate.

In short, I focused on what I could do during the time I wasn't teaching. Not the noblest reason to go into a profession. At that point in my career, mature decision-making was not my strong suit. (Not much better now, according to my wife.)

As Judge Karnow and others have noted, most lawyers who go into academia do so because they want to write theoretical, non-practical law review articles. Not me. I had no interest in that, so it didn't occur to me to apply to apply to Boalt, Stanford, or some other "elite" law school that focused on such interests.

So I jumped in. "OK, Roger, I'll do it."

At the National Housing Law Project, I had developed a bit of a reputation as a landlord-tenant law expert, and I'd written a book called the "California Eviction Defense Manual" (now published by CEB). So I expected the Dean to assign me to teach property law.

Instead, I got: "We're filled up in property law right now, Myron, but I need someone to teach criminal law. That would be you." I'd handled some criminal appeals while clerking on the Supreme Court, and I'd tried a couple of criminal cases at CRLA. But I was no criminal law expert. Still, I played the good soldier and mumbled a grumbling acceptance.

Most law schools give their new profs no training at all in how to teach a class. You're simply expected to do it. Same at Golden Gate.

How? Well, how would you do it? Right: the only way you know, which is the way you were taught.

So I taught the way my criminal law prof at Boalt had taught me. I assigned one of the standard criminal law casebooks, then led the students through it -- case by case. Read a case, discuss the facts and the reasoning, pull out "the holding" -- then move on to the next case.

The students had little interest in the facts and reasoning. They just wanted to get the holding right, because that's the only part of the case they would use on the final exam.

Oh, that final exam. When I read the first batch of bluebooks, I was shocked.

I'd written a typical law school exam. I presented a hypothetical story raising several issues, then asked the students to predict how a court would rule on them.

Most of them just couldn't do it well. As I learned over the years, every group of students includes a range of talent, from terrible to great. Some students clearly should have chosen some other career, while others went on to transfer to Boalt or another "elite" law school. The bulk were somewhere in the middle. That first bulk seemed pretty miserable to me.

After I turned in my grades, the Dean summoned me. "You need to raise these grades, Myron." I was surprised. "But that's what they deserved, Dean. They can't analyze a problem very well." To seal the deal, I played my trump card: my academic freedom. He just laughed. "You don't even have tenure, kid. I run this place, and I don't need a bunch of students mobbing my office to complain about the crappy grades you gave them. Raise 'em!"

I stewed, but held my nose and obeyed mein Fuhrer.

But then I got to thinking. Why did the students perform so poorly? Granted, most were not Harvard-quality pupils, but many of their comments during class discussions were on point and insightful.

Was it my fault? I was a novice teacher, but I recalled the Dean's most disturbing comment: "Your students' answers weren't any worse than the answers they gave on other profs' exams." And a more experienced prof had watched one of my classes and said I was doing fine -- teaching the same way everyone else taught.

Maybe that was the problem. Maybe the standard method we all used -- plodding from case to case -- was not the best way to prepare students to take an exam that required skills that neither I nor any other prof was teaching.

Maybe I should seek a way to teach those skills -- right in the core subject classroom.

So that's what I did. After quite a bit of thought and work, I came up with a different way of teaching core law school classes -- one that prepared students not just to take exams, but to become better lawyers.

And then I propagated my system to the larger law school world. I expected to be hailed as the new messiah of law teaching. But that's not what happened. I'll tell the full story in my next column. It reveals a lot about why -- as Judge Karnow says -- law professors are so "disconnected" from the real world of law practice. 