Free Speech, John Yoo, Law Professors, Law Schools, LLMs, Richard Epstein

Richard Epstein and John Yoo on Law School Reform

Professors Richard Epstein and John Yoo

The topic of whether (and how) to reform legal education remains very hot. The latest New York Times story — by David Segal, who isn’t very popular among law school deans right now — has sparked much online commentary.

And it’s not over yet. What do Professors Richard Epstein and John Yoo — two of legal academia’s most colorful characters, rock stars in Federalist Society circles — think of the current state of law schools here in the United States?

Professors Yoo and Epstein recently got together, along with host Troy Senik, for a great podcast that’s up on Ricochet. You can access it below (and also read some highlights that I pulled out):

In the introduction to the segment (around the 2:10 mark), Yoo reports that the UC Berkeley email system has been down for about two weeks. It sounds pretty disastrous — but, as Yoo notes, everyone is on Gmail anyway. (He does get in this good jab: “Another thing the state of California can’t do or shouldn’t be doing — running an email system.”)

They then turn to talk of Occupy Los Angeles (around the 3:30 mark). Troy Senik asks whether Occupy protesters threatened with eviction from their occupation sites have meritorious First Amendment claims. Epstein thinks not, describing their claims as “dead on arrival” and noting that this isn’t a free speech issue so much as a question of nuisance: “They’re doing an immense amount of harm…. If this is the kind of argument they bring on free speech, one has to have a very strong presumption that they’re going to be equally off base with everything else they argue on substantive grounds.”

Yoo adds that in many of the Occupy cities, the police “have bent over backwards” to avoid giving protesters reason to claim brutality. He notes that video clips of police activities sometimes feature actions taken out of context: they might show the police pepper spraying someone, for example, but not the protester action seconds earlier that incited the police.

After a discussion of executive power, in both domestic and foreign affairs — something of a rehash of a long-running debate, but perhaps of interest to hard-core Con Law nerds — the panelists turn to the topic of legal education (around the 41:30 mark). Epstein waxes enthusiastic about Roman riparian law (which he wrote about for the Duke Journal of Constitutional Law & Public Policy), and argues that the Supreme Court might have reached a better decision in Stop the Beach if the justices had had more familiarity with Roman riparian law. (This might not have been the best example, though; not many law school graduates will go on to sit on, or even argue before, the Supreme Court.)

More broadly, Epstein argues that knowledge of legal history can help lawyers serve their clients better in the present day. He also argues that law schools should teach theory as well as practice because they are training future leaders, not just specialists in technical doctrine. For example, take M&A work: when structuring and negotiating a deal, you need to understand theories and concepts from law and economics (e.g., moral hazard).

Yoo shares Epstein’s general positive view of American legal education, arguing that legal education in many other nations is worse than it is in the United States. He points out that Korea, for example, is moving to a U.S-style law school system — after studying many different models for legal education, from around the world. It’s also worth noting how many LLM students come to the United States after receiving their first law degrees in their home countries. It’s a sign that they, or their employers, think they will become better lawyers if they get legal training in the United States.

Anyway, these are just some highlights. To check out the full discussion, which also covers such topics as clinical education in law schools, why law school is not like medical school, and whether misery for young lawyers is inevitable, surf over to Ricochet.

Law Talk #17: Roman Riparian Law Is No Joking Matter [Ricochet]

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