Fidelity in translation

»  Reprinted from MoneyLaw, Madisonian.net, and the May 2008 issue of the Louisville Bar Association's Bar Briefs  «


FitzGerald's Rubaiyat
An illustration from Edward FitzGerald's translation of The Rubaiyat of Omar Khayyam, one of the most beautiful — and least faithful — translations of Persian poetry into the English language.

Law schools, no less than the lawyers they train, owe the profession an obligation to behave ethically. I interpret that ethical duty as one of translation. Legal educators should strive to translate their knowledge about law into real-world applications and outcomes.

Law is an applied discipline, not a pure science. There are divisions of the ideal university that ponder quantum chromodynamics, universal grammar, and number theory. And then there are divisions that design new devices, teach Spanish to otherwise monolingual Anglophones, and develop new encryption algorithms. Law schools emphatically belong to the latter category.

As in the health sciences, our greatest challenge lies in translating the work of law professors, as teachers and as scholars, into real-world results. Medical schools aspire to perfecting their programs for translational research. There is a legal equivalent of the medical profession's desire to deliver health care from bench to bedside. Law schools succeed to the extent that they train skilled social engineers. To me, “social engineering” carries no pejorative connotation. It is the conscious, purposeful, and ultimately noble project of avoiding, resolving, and mitigating disputes and of designing institutions to accomplish goals beyond the reach of individuals. Social engineering is the work of lawyers and allied professionals trained in law.

Let me translate this admittedly florid and abstract thesis into a set of blunt, pragmatic statements about legal education. Law schools have a single mission: we train people to become lawyers or to leverage their legal training into gainful employment in business, government, philanthropy, or education. Our students represent our ultimate product; their accomplishments, our greatest pride.

Law students — who often arrive at school with more ambition and raw generalized intelligence than anything resembling a marketable skill — have every right to expect a material, measurable return on their investment. Although legal education at the University of Louisville remains one of the profession's greatest bargains (especially for Kentucky residents), many law students shoulder tuition in the neighborhood of $40,000 per year and living expenses in communities that are costly precisely because they surround universities. Many law students graduate with six-figure debt loads. This is to say nothing of debts from undergraduate education, family formation, the ordinary business of life.

American legal education today faces some very stiff challenges. A very significant portion of each year’s new crop of law school graduates will be fortunate to find employment, if at all, in the neighborhood of $40,000 per year in salary. The convergence of high tuition rates and low first-year salaries is a sign that law schools need to deliver more on their promises. Mere jobhunting may not pose worries for students at the very best schools or for the very best students at most other schools, and unemployment certainly lies outside the experience of most law professors. But the vast majority of law students pay tuition and forgo at least three years of other opportunities in order to secure jobs that are more rewarding, in intellectual and financial terms, than those they might otherwise have held.

RubaiyatEmployers often report that many law school graduates need three to five years of on-the-job training to become truly effective. In private practice, the turning point is profitability. Law schools must be able to guarantee that their newest graduates will represent leverage, not liabilities. Here at the University of Louisville, we strive to prepare our graduates to be ready for work in every conceivable placement setting, immediately upon graduation and bar exam passage, or at least as quickly as possible thereafter.

Today’s legal academy often seems to wage war against itself. On one hand, genuine reform efforts stress improvements in teaching that are consciously designed to improve law school graduates’ skills and marketability. Novel approaches to the first year, experiential learning, interdisciplinary education, and capstone courses represent merely some of the ideas that entrepreneurially inclined schools have begun to explore and even to implement. The newly announced University of Louisville Law Clinic represents our Law School's most significant innovation in recent memory.

By the same token, many other law schools are prone to chasing the latest intellectual fads and pouring enormous amounts of money into collateral projects whose connection to the core mission of training lawyers and other legally sophisticated professionals is apparent, if at all, only to the proponents of those projects. Law schools often tout these maneuvers in glossy publications aimed not so much at graduates, donors, and prospective employers of our students, but at other law professors. The legal academy can, should, and does blame much of this imprudence on the U.S. News and World Report rankings. Legal educators as a class, however, cannot afford to become divorced from the realities facing our students and from our duty to address those realities on their behalf. We must remember that law schools exist not as playgrounds for their faculties, but as training grounds for their students.

As matters stand, law schools have a very hard time accomplishing their core mission. The real cost of solid legal education is very substantial, and there are no obvious places to cut costs. Most law schools depend almost entirely on tuition or on some blend of tuition and precarious public support. It is not at all unusual for unrestricted giving to a law school to hover in the neighborhood of one percent of the overall budget. Donors can be persuaded to support a wide variety of causes, ranging from physical facilities and scholarships to programs such as moot courts and clinics. Most donors are law school graduates who had to work hard for relatively low pay before achieving the financial security that now enables them to be generous. They will support their alma maters, in some cases with extraordinary passion, precisely to the extent they feel that they were able to translate their law school experiences into real-world success.

My depiction of legal education and academic management may not be the most aesthetically pleasing description of our enterprise. But an old literary saying about translations seems apt. Translations, so conventional wisdom goes, are like lovers. Though the most faithful translations may be plain, the most beautiful translations tend to be unfaithful. Law schools owe their primary allegiance to those whose tuition dollars, taxes, and donations enable the entire project of legal education. We owe these students, taxpayers, and benefactors some measure of fidelity in translation.