“Doing What We Do Best” or “Why Law Professors Should Feel Less Guilt”
posted by Nate Oman
Deven invited me to participate in the Mobblog over at Madisonian about the nature of law schools. Here is my curmudgeonly (can you be a curmudgeon when you are 32?) first contribution to the debate:
Law schools, we are told, are failing to properly train lawyers for the profession. Most of the criticism comes from those who insist that legal education is too impractical, focusing on abstract questions with little relevance to legal practice and failing to provide the concrete skills in interviewing, drafting, etc. that are an attorney’s bread and butter. What happens in law schools, the critics insist, bears little resemblance to what happens in legal practice.
Before law professors join too enthusiastically in the self-flagellation, however, I think that we would do well to question the assumption that what happens in law schools ought to closely mirror in some sense what happens in legal practice. Rather, I think that law schools ought to devote their attention to those areas of legal education where they have a comparative advantage. What do law schools do well? The answer is that we do “theory” well. We do not, however, do “practice” nearly as well as . . . well . . . practitioners. Accordingly, I think that law schools should focus unabashedly on “theory.”
The scare quotes in the last three sentences are deliberate. When I say “theory,” I don’t necessarily mean philosophy or critical theory or deep meditations on the methodology of law and economics. Rather, I want the term to mean something like abstract, reflective, or big-picture approaches. Hence, theory does include subjects like philosophy or economics, but it also includes understanding doctrinal subtleties or careful analysis of the moves made in one of Cardozo’s pocket-picking opinions. Much of what I am thinking of as “theory” would fall into the academically much maligned category of “doctrinal thought.”
I think that law schools ought to focus on “theory” for three reasons. First, at some deep subterranean level I think that it is useful in practice. Lawyers who are intellectually excited by and engaged with the law are more successful than those who flopped into the profession by default and seek the minimal legal understanding necessary to perform their work today. They are also happier. Second, I think that “theory” in this broad sense is an area where law professors have a real advantage over legal practitioners. Finally, if students don’t get a broad exposure to theoretical perspectives on the law in law school, it is unlikely that they will get them in practice.
Inherent in this vision of the law school, however, is the reality that law schools are one player in legal education, rather than the player. Many of the law-schools-are-failing-to-train lawyers complaints essentially boil down to the assumption that upon graduation with a JD our students should be ready to hang out their shingle and begin the practice of law. I see no reason, however, why this should be taken as the standard against which to measure legal education. Law was learned through apprenticeship long before there were law schools. There are great benefits to apprenticeship. I learned much more about writing appellate briefs from clerking for a judge or going over drafts with a senior partner than I ever learned in law school. Law firms, however, wish — as much as possible — to push the task of training attorneys entirely onto the shoulders of the law schools. Yet there are many areas where practitioners enjoy a massive comparative advantage over law schools.
What about the law student who graduates and goes into solo practice you ask? My answer is that she shouldn’t. Indeed, if we are serious about increasing the quality of legal education, then I suspect that ultimately we are going to have to restructure the legal profession itself. English barristers, for example, are required to go through a period of formal “pupilage” before they are allowed to practice for themselves.
To be sure, there is much about law schools that could be improved. Still, at the end of the day, I think that the profession needs to recognize that the training of young lawyers is not something that they do because the law schools “fail.” Rather, legal education is something for which law schools and senior lawyers are jointly responsible. If that means changing the process of admission to the profession or even the nature of employment contracts for young lawyers (who perhaps should look more apprentices and less like at-will employees) so be it.
crossposted at Madisonian.net
April 7, 2008 at 1:39 pm
Posted in: Law Practice, Law School
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Responses (7)
Mike Zimmer - April 7, 2008 at 4:22 pm
Perhaps it might help to replace “theory” with “thinking hard.” That is the training that law schools can claim as one of their most important contributions to the education of future lawyers. All too few students are accomplished deep thinkers before they come to law school and, of course, many escape without being all that much better at it. Nevertheless, legal education is of great help to a goodly number of students to do hard thought and that can be learned in stimulating classes, seminars, clinics, journals and, even perhaps, late night bull sessions.
Mike Zimmer - April 7, 2008 at 4:22 pm
Perhaps it might help to replace “theory” with “thinking hard.” That is the training that law schools can claim as one of their most important contributions to the education of future lawyers. All too few students are accomplished deep thinkers before they come to law school and, of course, many escape without being all that much better at it. Nevertheless, legal education is of great help to a goodly number of students to do hard thought and that can be learned in stimulating classes, seminars, clinics, journals and, even perhaps, late night bull sessions.
Sean M. - April 7, 2008 at 8:57 pm
I was a philosophy major as an undergraduate and law school seems like black letter law all the time by comparison.
I’d agree with Mike Zimmer that law school’s primary benefit is that it teaches people to “think hard.” Law school isn’t just about memorizing the rules. It’s about the analyzing, and that’s what law school seeks to hammer into people.
I’d also reject the premise that law schools don’t teach much practical knowledge. It seems that most people take as a given that students walk out of law school using nothing that they learned in it. But do students really walk out of Civ Pro not retraining a shred of it? Or learn nothing about Contracts in Contracts? Obviously, “national” law schools do not teach the law of any given state, but researching a state code or law is much easier when you have a general sense of the structure and nature of the general law and its majority and minority positions. It’s not like we’re doing all Law & Econ, all the time.
The biggest complaint about law school would be that it teaches “law” while what most lawyers do most of the time is gather facts. That is, the case method, taught as it is by cases that take certain facts as “given” and then proceeding from there to propositions of law, is bad at teaching how lawyers get to the facts that are contained in the court decisions. In other words, law school does not convey that lawyers are more investigators than they are Supreme Court advocates while in practice. It’s also why appellate litigators, in my experience, and Court of Appeals clerks, are the ones that say their experience is most like it was in law school.
But it’s hard to figure out just how law schools can fix this. Roleplaying exercises help somewhat, but my experience in the W&M Legal Skills program makes me believe that it is hard to take the simulation seriously when it comes to factual investigation because everyone is self-conscious that the simulation is just a simulation. In the end, you just need to get out there and handle your first case, and that’s something that law school can’t do for you.
Michael Ayres - April 7, 2008 at 10:44 pm
Your opinion fails to dissect the fact that the majority of attorneys in this country do not work for big law firms. Much the opposite, the majority of us, including myself, are average students who are forced to look at our practice from an economic standpoint. As such, we do not have the possibility to be mentored and coddled during our first few years in practice. We are required, if not forced, to hit the ground running so our outlandish school loans do not force us into bankruptcy. Most of us will not practice before a circuit court or a district court. The reality is that most of us will be languishing away in superior court.
That being said, I feel law schools do not impart the social and practical skills that are required to be succesful. I have many friends who have no idea that the “Law” as interpreted in law school is nothing like the day to day practice that they will soon see. I tried to explain this point to my wife, not an attorney, the other day. She felt that if the law states something, then that is the end of it. As you all know, this is not how our legal system actually works. We may pride ourselves on being lawyers, the defenders of justice, but in reality we are negotiators. It is from this distinction that our law schools are failing to produce real world attorneys. We are not being taught how to negotiate or how to settle matters between parties. IF you look at the majority of casebooks it is all trial and post trial cases. Trials encompass such a trivial portion of our legal system. Where is the mediation transcripts that show what real life is like. Where are the client meeting notes that show reasoning and real life repercussions.
I understand that as lawyers we need to master critical and logical thinking. But I feel law schools devote too much time to this, and not enough time to clinical skills which are inherently much more vital to a succesful practice. I recently read that a law school has turned their third year curriculum into a purely clinical year. I wish my law school had chosen to do this as I feel it would benefit the students greatly. Hopefully this model will be succesful in mentoring young attorneys. If so, I feel it could greatly benefit the legal community.
Michael Ayres - April 7, 2008 at 10:44 pm
Your opinion fails to dissect the fact that the majority of attorneys in this country do not work for big law firms. Much the opposite, the majority of us, including myself, are average students who are forced to look at our practice from an economic standpoint. As such, we do not have the possibility to be mentored and coddled during our first few years in practice. We are required, if not forced, to hit the ground running so our outlandish school loans do not force us into bankruptcy. Most of us will not practice before a circuit court or a district court. The reality is that most of us will be languishing away in superior court.
That being said, I feel law schools do not impart the social and practical skills that are required to be succesful. I have many friends who have no idea that the “Law” as interpreted in law school is nothing like the day to day practice that they will soon see. I tried to explain this point to my wife, not an attorney, the other day. She felt that if the law states something, then that is the end of it. As you all know, this is not how our legal system actually works. We may pride ourselves on being lawyers, the defenders of justice, but in reality we are negotiators. It is from this distinction that our law schools are failing to produce real world attorneys. We are not being taught how to negotiate or how to settle matters between parties. IF you look at the majority of casebooks it is all trial and post trial cases. Trials encompass such a trivial portion of our legal system. Where is the mediation transcripts that show what real life is like. Where are the client meeting notes that show reasoning and real life repercussions.
I understand that as lawyers we need to master critical and logical thinking. But I feel law schools devote too much time to this, and not enough time to clinical skills which are inherently much more vital to a succesful practice. I recently read that a law school has turned their third year curriculum into a purely clinical year. I wish my law school had chosen to do this as I feel it would benefit the students greatly. Hopefully this model will be succesful in mentoring young attorneys. If so, I feel it could greatly benefit the legal community.
A.J. Sutter - April 8, 2008 at 7:38 am
I went into transactional practice at a big firm after law school. Law school is useless for learning about doing deals. But I did learn a lot in school that I found it handy to know within my 12 months on the job.
These things included: the basics of contracts; the basics of setting up corporations; how to read statutes and regs, and to understand the difference between them; some basic tax concepts (stuff like “basis” etc.); the basics of the securities laws (difference between ‘33 and ‘34 Acts); the practical importance of choice of law provisions (the most important result of taking Conflicts); mechanics of UCC Articles 2 and 9; and, thanks to the fact that I was the only one on my team who had studied comparative law, the fact that “directors” of a Netherlands Antilles BV don’t necessarily have the same power as directors in a US corp (BV powers are broader).
My course in comparative law actually was quite practical, as further evidenced by the advice of our professor (the late Rudolf B. Schlesinger), “Always read the footnotes; someday, the roof over your and your family’s head may depend on your doing so.” To this day, I have never found my one truly theoretical course (sociology of law with the late Julius Stone) of any value whatsoever. Certainly law school should not emphasize theory over basics, all the less so at this historical moment when theory is so contaminated by economics (and a rather shallow version of it, at that).
A.J. Sutter - April 8, 2008 at 8:55 am
Correction to my immediately previous post: they were useful within my *first* 12 months on the job. Fortunately, I actually lasted somewhat longer than that.
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