More Reflections on Legal Education
posted by Daniel Solove
Brian Tamanaha has just posted another interesting post in the discussion about legal education. He writes:
Most law schools now follow the elite model, striving to hire faculty and produce scholarship like research universities, when it might better serve the interests of many non-elite law schools and their students to concentrate on training good lawyers. Money now allocated to scholarship and research leaves would instead go to clinics and other practice training; professors would teach 15 hours or more a week; faculty would be hired for the desire and ability to train lawyers, not for scholarship; more law schools would look like Massachusetts School of Law (which the ABA has mightily resisted). Schools built around this alternative model would produce capable lawyers at a much lower tuition, which would be good for the students and good for society.
This vision of legal academia allows for a range of law schools, serving different needs and circumstances, rather than one academic model for all. It makes sense, but to succeed it must have the support of law professors.
Brian blames a lot of the problem on the ABA, which has imposed a one-size-fits-all model on the academy. I agree with Brian that this is unfortunate. But from Brian’s earlier posts and from some of the discussion in the blogosphere, there are some claims being made that I think are questionable or wrong. Brian doesn’t make many of the claims below — they are often made by people who are interpreting or building off his posts — so I’m not ascribing them to Brian. But they are swirling about in this debate, and I think they ought to be addressed.
Claim #1. The turn in academia toward a greater focus on the academic study of law and toward more scholarship results in students being less well prepared for practice than they were before this more academic turn in the academy.
Are students today less well-prepared for practice than 50 years ago? Were law schools 50+ years ago producing better lawyers? Did they have better bar-passage rates? I wonder whether the practice of law has suffered because of this change in the academy.
Claim #2. The turn toward interdisciplinary scholarship and to scholarship more in general is one of the primary reasons for the greater cost of going to law school.
Is this really a primary reason for the tuition increase? Has the tuition of law schools increased more than the tuition generally for higher education? My sense is that the cost for higher education has increased across the board, and so I wonder whether the increase is due to other factors beyond the change in the nature of legal education.
Claim #3. The best way to prepare students for the practice of law is to teach them practice skills such as drafting, negotiating, arguing, etc.
I think that it is certainly important to teach students basic lawyering skills. But in reading discussions about the issue, I often hear a common refrain that teaching students jurisprudence, legal history, and other interdisciplinary subjects is not really that essential — it’s a nice frosting on one’s legal education, but nothing more than a sweet tasty coating.
But I believe that there is a real value teaching students to think about the broader issues in the legal system, about the larger moral questions, about the tension between the rule of law and justice, about the policy implications of laws, about the sociological and economic effects of regulation, and so on. I believe that this makes students into better, more capable practitioners. Many, however, remain skeptical of this claim.
Yet, there’s another reason why teaching students these things has value. Maybe our task as legal educators isn’t simply about producing technically-competent lawyers. Being a lawyer brings a lot of power; our students will enter the elite realm of society. Unlike many people, they’ll have an incredible set of tools to change society and affect people’s lives. Should we simply train them how to be more effective hired guns? Or maybe we’re right to try to spur them to ponder the broader issues of the legal system, to understand its history, to think about whether certain laws are good or bad. I think that legal education should be more than merely a lawyer factory. We’re not just training people in skills, but we’re preparing them to enter a profession, one that plays a profound role in our society. And there is value to having those that work in that profession (at all levels — from lawyers, to judges, to policymakers) spend some time thinking about the effects of the law on society.
Should this be shrugged off as theoretical fluff that is only of use to academic-types who sit as armchair commentators about the law? Or should it be something that all lawyers confront and think about before they embark on their careers? I believe that there is value in thinking about the meta questions — the critical awareness of what one is doing, the system one is working in, and its larger social effects– even if doing so doesn’t help one win a case or draft a document or complete a deal.
January 23, 2008 at 12:55 am
Posted in: Law School, Law School (Scholarship), Law School (Teaching)
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Responses (14)
Jason - January 23, 2008 at 7:39 am
“Were law schools 50+ years ago producing better lawyers? Did they have better bar-passage rates?”
I only comment to say that I hope these two things are recognized as being utterly different things, completely unrelated to each other.
Which is not to say that it can’t be a school’s mission to produce bar-passers. It’s simply to say that if it’s that school’s mission, then the mission to produce better lawyers will likely suffer.
Daniel J. Solove - January 23, 2008 at 8:13 am
Jason,
I am not trying to equate the two. I have argued that the bar exam bears no relationship to practice and should be abolished.
Matt - January 23, 2008 at 9:18 am
On point 2, my impression (admittedly not formed through systematic comparison but rather from a somewhat haphazard reading of mostly journalistic articles) is that law school tuition has increased more quickly than regular tuition but that this is almost completely due not to the expense of interdisciplinary education but rather due to law schools (like business schools, which have also had great increases) being money-making operations for universities. The law school at many universities, it seems, helps subsidies the rest of the university, giving strong incentives to increase tuition so long as there are people willing to pay it. This, of course, would be so even without interdisciplinary scholarship, though it’s at lease concievable that the lack of such might make some people less willing to pay. (It certainly would have done so for me.)
John - January 23, 2008 at 9:24 am
“Should we simply train them how to be more effective hired guns? Or maybe we’re right to try to spur them to ponder the broader issues of the legal system, to understand its history, to think about whether certain laws are good or bad.”
Amen. As a practitioner at a big law shop, I can attest that while my colleagues and I always strive to attain the utmost in competence and ethics (sounds cheesy, but it’s true), there is neither the time nor the incentive to think about the law from a historical or normative perspective. If this type of thought is not fostered in the law schools (through faculty research and classes), where would it be fostered?
Mike Zimmer - January 23, 2008 at 10:05 am
1. I agree with Dan that the bar exam system should be scrapped. The quality of practice in Wisconsin is in no noticeable way different from the quality in states requiring all to take the bar. If we transferred all the time, money, energy from bar exams into required provision of legal services to the underserved, with that practice supervised for newbies, we would be way ahead of where we are now. One example, way too many employment discrimination cases are pro se because the economics of practice limit who can take the cases and survive in practice.
2. The rise in tuition is a function of many things, including the increasing provision of services to students, such as career services. One of the areas that is expensive but which has unquestionably improved the quality of practice for lawyers is the whole clinical area. Well developed legal writing programs have also improved the quality of student’s abilities immensely. Interdisciplinary focus has got to be a minimal factor in increased costs.
Though the ABA punted in its settlement with the DOJ, legal education today is far superior in terms of the preparation of students to practice than was the case 50 years ago. I think few would want to go back to the “good ole days.”
Bruce Boyden - January 23, 2008 at 11:47 am
My own comments on this debate got pretty quickly buried about 10 posts below this one, but here’s a link:
http://www.concurringopinions.com/archives/2008/01/practicing_law.html
Just to be clear on how my post relates to Dan’s Claim 3, I don’t know about other commenters, but I certainly didn’t intend to claim “no value” to a practice-destined student in taking Jurisprudence or Legal History. My discussion is focused on the teaching of basic law classes, e.g. Torts, Contracts, etc. Even in those classes, I think there’s plenty of opportunity to talk about the issues that concern Dan, i.e., “the broader issues of the legal system, to understand its history, to think about whether certain laws are good or bad.” My sense is that practical training and dilettante-ish interests would be sufficient to enable a professor to lead a Contracts or Civ Pro class discussion of those issues, and standard case law readings followed by questions or notes in the text (or maybe short squibs from an article) would be sufficient on the student end as well. To the extent that students and professors want to supplement practice-oriented classes with more theoretical ones that go in-depth on scholarship, bully for them. I myself hope to teach a legal-history-type seminar in the next few years.
Dennis Tuchler - January 23, 2008 at 11:55 am
This discussion borders on another one having to do with the cost of legal education — the three-year law school as opposed to the one-year or 18-month law school. AS school focused on practical skills, including the intellectual skills associated with legal argument, would be much less expensive than one purporting to do all that an “elite institution” purports to do.
Curious - January 23, 2008 at 12:20 pm
Dan, this is a really lovely post. I think you are dead on, too: we should aspire to train lawyers not simply to do what they are going to do in practice, but also to think critically about the very enterprise in which they will be engaged. That requires a theoretical educational experience as much as a skills-based one.
What I think this whole debate in the blogosphere misses is that such an education can be provided only if law schools focus on teaching. To focus on teaching does not mean to hire practitioners with 20 years experience. It doesn’t mean that Ph.Ds are the answer either. It simply means that teaching, independent of scholarship and independent of practice experience, has value. Lots of it, and law schools ought to start taking that seriously.
Andy Starkis - January 23, 2008 at 3:51 pm
Someone showed me the excerpt of your debate with Brian Tamanaha posted on the lawandletters blog. Intrigued, I followed the links to your original postings. I’ve read those, and I’m surprised the debate is as simplistic (no offense) as it is.
I’ve been a lawyer for over thirty years and on the faculty of Mass. School of Law for the last ten. And some years ago I co-authored with a couple of my colleagues an article in the Journal of Legal Education pointing out some of the ways we in fact meet the call of the Macrate Report and do so for far less money than most law schools. (We’ve gotten better since then.)
The choice between “a lawyer factory” and a place where the students “think about the broader issues in the legal system” is a false one. And ironically, our “lawyer factory” is a much better place to focus on “larger moral questions,” the “tension between the rule of law and justice,” and the “policy implications” of the law than were either of the “elite” law schools I attended. Doctrinal law is far better taught and learned when it is anchored in reality, the reality of law and law-related practice that my students are likely to engage in.
Much of what I studied in law school was absolutely meaningless to my life and work as a lawyer, and I would bet that a substantial portion of working lawyers would echo my sentiments. Law school did not prepare me for the bar exam, and after I passed it, I knew almost nothing about how to do any of the things I was then licensed to do — except for work I did in a very good small law office during my final semester of law school.
In your posting, you keep saying legal education “isn’t simply about producing . . . lawyers” or “simply train[ing] them . . . to be . . . hired guns” or “should be more than a lawyer factory.” The assumption throughout is that what you make sound like the easy part is in fact being done. It isn’t.
Just imagine a medical school that taught its students all about the history and philosophy of medicine, the societal impact of medical developments and technology, the economics of healing and dependency, but didn’t have the time, money, expertise, or inclination to teach them what doctors do. If that sounds ridiculous, it should.
joe - January 23, 2008 at 4:56 pm
And the notion of all law graduates somehow entering an “elite cadre,” such that they can afford to mull over the meta-issues at the expense of serious skills-based learning smacks of elitism in itself. Access to legal information has advanced in leaps and bounds for the average layperson, and we should acknowledge that development of solid practice skills is the one comparative advantage that law schools can offer now.
Let’s be honest; the fact of the matter is that the vast majority of law graduates will not be members of an “elite.” They will make up a level of hardworking “worker bees” who quite frankly will not have the luxury of sitting around an Oxbridge drawing room, sipping sherry, and debating finer points of jurisprudence, or spending their precious time in law school behaving as if they were.
And quite frankly, in previous years, the average law student who graduated in his or her mid-twenties with minimal or no debt could afford to devote their time to delving into these intellectual topics at the expense of not building practical skills, because they could spend a few years post graduation building up these skills for little pay. This is just not the case now for most students.
Do I think law school should be more than just a trade school? Certainly (and this is coming from a liberal arts grad who prized his training and learning)probing, intellectual inquiry of different points of the law is important..but not at the expense of developing practical skill sets that will enable students to actually get jobs and hit the ground running in this exceptionally difficult legal job market. The latter skills have to be made the priority in teaching.
I find Prof. Solove’s comments to be just a little too idealistic, given the realities of what most law graduates will be doing once they graduate (if they are lucky enough to get jobs in the legal field at all).
Stephen M (Ethesis) - January 23, 2008 at 9:01 pm
“Let’s be honest; the fact of the matter is that the vast majority of law graduates will not be members of an “elite.” “
Hmm. What percentage of law schools in the bottom three tiers would you consider producing members of an elite?
Of the top tier?
I think that responds directly to the core issues, not to mention, does anyone believe that a person who has graduated from law school and passed the bar is prepared to practice law, in any fashion, without supervision?
A.J. Sutter - January 25, 2008 at 10:48 am
Andy Starkis and Bruce Boyden are on the right track here. Teachers who love their “doctrinal” subjects can light the spark of intellectual interest in their students. Constitutional law should be the intellectual content course par excellence, but contracts, property (natural rights theories & such), crim pro, even torts can all do the trick, if taught properly — and sometimes even if taught badly. I didn’t enjoy torts, and my professor was an unhappy guy who kept a bottle of vodka (or some other hard stuff) in his desk drawer, but “proximate cause” certainly has some philosphical content. My con law prof had tremendous reverence for the subject. Even my tax prof imparted the idea that law could be creative. Sounds like the motivation for some of these “interdisciplinary” classes is because faculty don’t see the tremendous intellectual content in the straight stuff.
Tarun Jain - January 27, 2008 at 5:56 am
Some reflections from India on legal education. …
http://legalperspectives.blogspot.com/search/label/Legal%20Education
Tarun Jain - January 27, 2008 at 5:58 am
Some reflections on legal education from India
http://legalperspectives.blogspot.com/search/label/Legal%20Education
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