1. Mike - September 23, 2009 at 1:12 pm

   Then why don’t you get a Ph.D., and start teaching a Master’s students in Jurisprudence? Or teach a law school course in Jurisprudence or Common Law Methods? Why do people with a J.D. feel qualified to teach what is really a form of “Philosophy of Law”?

   I went to Civil Procedure course to learn civil procedure. If you think that law students need to learn Jurisprudence or Common Law Methods, then mandate that each student take an elective in those courses.

2. shg - September 23, 2009 at 1:22 pm

   The students need to know how to be lawyers. Your love of Erie and theory is not why they went to law school.

   Mike is right. You’re in the wrong job. Don’t make your students suffer for it.

3. anon - September 23, 2009 at 1:53 pm

   I wouldn’t go so far as the two commentators above. True, students should learn the “process of legal change over time” and will hopefully appreciate that over time as the real law does change over the course of their careers. but there is no way that practical justifications (i.e. “you will appreciate this theory one day”) can possibly justify the amount of time devoted to Erie and the low, low, low amount of time devoted to discovery. Over the course of a career, the typical litigator will devote hundreds of thousands of hours to discovery and attorney-client privilege.

   A frank assessment would be that if law school taught to the reality of practice (or at least litigation): (1) it would be boring for the student; (2) it would be boring for the professor; (3) no one would enroll; and (4) law school would last six months, since all you really need is Civil Procedure (Rules 11 and 26) and evidence (attorney-client privilege), plus BarBri. Law schools teach theory because professors find it interesting, and (however unrealistically) hope that some of their students do, too. The number of students who will have practical use for appreciating the process of legal change except as abstract philosophy is basically zero; since not many of us will become legislators, judges, appellate litigators, or senior officials. But it is just too early to take away a law students last few years of intellectual freedom before they sink into the pits of misery that is practice.

4. Mike - September 23, 2009 at 2:12 pm

   BTW, I love the law qua the law. When I was in law school, I started a law blog that discussed the theory of criminal law – esp. the intersection of crime and federalism. I worked as an RA for a “big gun” con law professor. I study Section 1983 scholarship that has noting to do with the majority of Section 1983 cases I work up. I was also a philosophy major.

   Yes, I like thinking and thinking about thinking…So what?

   None of this means that law school should not teach The Law. Again, if the students need to learn common law methods, teach a course called, Common Law. Teach a course in Jurisprudence.

   Hey, I lobbied to get a class on statutory interpretation added to the curriculum. It didn’t happen, because no professor wanted to teach it.

   Law schools should absolutely require – in a singular class – courses in common law, and in statutory interpretation.

   Each class shouldn’t be Common Law-Lite.

   In Civil Procedure, we should have learned the Federal Rules of Civil Procedure as they are actually applied. Which means we should learn a lot more about Rules 12 & 56 than about Erie.

   I remember Civ Pro my professor spending three classes on Rule 11’s safe harbor provision. She made it seem so complicated. In hindsight, I realized she was a moron. Here is all a student needs to know: “If you file a frivolous lawsuit, you have a certain number of days to voluntarily dismiss the suit before you can be sanctioned.” Not hard!

   I think that you Civ Pro teachers want to make the law more complicated than it is. Yes, Charles A. Wright has written a huge treatise on Federal Practice and Procedure. Civ Pro is complicated because there are a lot of rules.

   Civ Pro is not complicated because it’s intellectually challenging. Seriously, folks, it’s not quantum physics. It’s a lot of mundane memorization and synthesize of many inter-related rules. That’s it.

   You can make the Civ Pro engaging and challenging as it is. Just don’t dress it up in quantum mechanics.

5. John Steele - September 23, 2009 at 2:43 pm

   Can’t those generic skills be taught through topics that do come up frequently in practice?

   Most of the major firms now have “bootcamps” that provide a crash course in civil procedure. A survey of the emphasis in those courses might be instructive in what practicing lawyers feel is important.

6. O'Thor - September 23, 2009 at 3:00 pm

   Mike, you suggest that there’d be value in teaching courses in Common Law — basically purging the legal method instruction from other classes. There is some merit to this, but it is quite hard to do without sustained examination of a particular substantive area, and every report that I have heard of such classes indicates that they are despised by students as well as by faculty. I happen to think that the “common-law lite” method of simultaneously exposing students to various examples of legal evolution in the doctrinal classes can work pretty well, not least because different courses have different constituent elements (e.g., the UCC v. the FRCP) and because it is sometimes essential to understand the preceding rules in order to understand what contemporary courts are avoiding, rebelling against, or grudgingly respecting. A lot of it is in the execution, certainly, and I am sure experiences vary.

   As to the subjects covered . . . Personally, I agree that some doctrines (like Erie) are overdone, but I think you overstate matters a great deal, and I don’t think you’ve thought through the alternative approach. Does learning the rules of civil procedure as they are “actually applied” mean studying them in proportion to their incidence in practice or litigation, even if they are easily grasped? Presumably not; you would be quick to label too much time on a common but simple subject “moronic.” In proportion to the difficulty of figuring it out immediately on your own in practice? Maybe then we have more time lavished on issues that are difficult to grasp (and, incidentally, I have had to struggle to recall aspects of Erie in practice). You suggest that none of it is intellectually challenging, I know, but maybe you could excuse this prioritization as just a higher level of mundane memorization or slightly more taxing (but still trifling) synthesis.

7. James Grimmelmann - September 23, 2009 at 3:34 pm

   need to know how to appreciate the ways in which legal change interacts with social change and the ways in which theory impacts doctrine

   Why do they “need” to know this? Why is this something they need to “appreciate?”

8. O'Thor - September 23, 2009 at 7:44 pm

   James Grimmelman: would “useful for them to understand” lower the bar sufficiently, while remaining appropriate to teach? As to why it’s useful, I would guess (inter alia) because lawyers trying to understand the origin and continuing legal force of precedent find it useful to understand the context in which it is rendered, whether that context is due to social/political circumstances or how lawyers, judges, and politicians think about the law; perhaps because lawyers seeking not only to practice, but also to accomplish (or retard) change, may find it useful to have studied examples.

   I’d think that similar lessons might be appropriate in property and IP, or have you found it best to stick only to the rules as they are presently applied, as Mike would suggest? I imagine it’s a matter of degree.

   P.S. For those believing that these connections are tenuous, there are implications not only for teaching but also for research. Suppose a teacher believes that the only matter fit for students is black letter law in proportion to how it arises in practice, and that teaching how legal change occurs or how theory impacts doctrine is next to irrelevant. (The view may be more nuanced than this; there may be a sense in which it belongs only in electives, say, though I think that is somewhat hard to defend.) If there is such a disconnect, it becomes proportionately harder for that teacher to explain why so much of his or her time should be left free to study anything other than the doctrine which is taught. I think a view that professors should not only stick to teaching practice-relevant doctrine, but also shouldn’t be paid for researching and writing beyond that, is defensible, but many would find that offputting.

9. Ben Barros - September 24, 2009 at 6:55 am

   I’m not sure about the premise of the debate. Personal jurisdiction came up in my practice all the time. Erie not so much, but that may be because the law is so well established, if a bit confused. If Civ Pro, like most first-year classes, is seen as a survey class, I think that some coverage of personal jurisdiction and Erie should be included. This said, if the real point is that Civ Pro profs spend too much time on these subjects because they are the most “interesting” aspects of Civ Pro, then the objection is probably fair.

   I’m also not sure how much learning Rule 26 helps with learning discovery. It is a start, but in practice discovery often turns mostly on local custom and the individual judge’s rules.

10. Bruce Boyden - September 24, 2009 at 1:09 pm

    Interesting discussion. I’ve sharply cut back on the amount of Erie I do, and may someday eliminate it entirely, because of the concern it’s not terribly practice-relevant. Sure, it could come up, but so could class actions, and I don’t do them either (because of time). The one reason I still teach it is because it illustrates an important line between federal and state courts, and because new graduates are probably still presumed to have learned it at some point.

    I’m also deeply unsatisfied with the personal jurisdiction chunk of the class, but don’t have a good idea for how to fix it. My main issue is that the traipse through Supreme Court history makes the doctrine seem much more confusing than it in fact is. Someday I might jettison everything after International Shoe and teach the law of a particular circuit instead.

    I also expand the coverage of discovery from what’s recommended in my textbook. I agree it’s hard to teach; most of what’s hard about discovery is the practice of discovery, so I lecture a bit more than usual. I spend as much time on it (4 hours) as I do on Erie.

11. Vladimir - September 24, 2009 at 3:08 pm

    Jon, I couldn’t agree more, and I’m rather shocked at the disagreement of your commentators. I agree that students absolutely need to learn about the process of legal change — that the so-called “black letter law” they crave is pretty passing, and that they can aspire to change the law in some pretty interesting directions. Indeed, what students need in law school, in my view, is theory, theory, and more theory. They need to develop robust frameworks in which to embed the workings of the more mundane rules, frameworks which will make their practices more intelligible and richer. They will have plenty of time in practice to learn practical things. But only with a strong theoretical basis to bring to practice will new lawyers be able to grow professionally. I like to think that we are training lawyers not for day 1, but for year 15 of their practice lives.

12. Larry Rosenthal - September 24, 2009 at 4:52 pm

    Law school is preprofessional education — students are spending all that time and money in order to obtain a marketable skill. What I find remarkable is that law professors who have never spent any appreciable time in practice, and who have enjoyed no meaningful success in practice, think that they are competent to opine on what kind of legal education is necessary to succeed in practice.

    Larry Rosenthal
    Chapman University School of Law

13. Vladimir - September 24, 2009 at 6:00 pm

    It’s not about helping law students “succeed” in practice under current practice standards. Practice is a pretty dispiriting place; it needs reforms. Law school, as I see it, is (or ought to be) designed to give students countervailing, enduring values to use in fighting or at least not imbibing the market-driven ethos of practice. A good legal education will help make lawyers more true to the true nature of the profession — which law professors study and therefore are much more competent than practitioners, who are too caught up in the day to day business of law, to opine on.

14. Mike - September 24, 2009 at 6:19 pm

    Vladimir: People who want to learn what you suggest may seek a Ph.D. in Jurisprudence. Law school is a professional school people attend to become lawyers. One might even call law school a trade school.

    But let’s be frank. Why do a bunch of people with J.D.s, which is all most law professors have, even feel qualified to to teach Philosophy of Law or Theory of Law? It seems outrageously presumptuous.

    It seems that most law profs are J.D.’s running around like they’re Ronald Dworkin. Get that Ph.D., at least, before you feel qualified to teach Theory of Law.

15. Larry Rosenthal - September 24, 2009 at 6:37 pm

    Vladimir:

    If law school is “not about helping law students ’succeed’ in practice under current practice standards,” then, to avoid consumer fraud, a law school that takes your view should be plain that it not trying to impart a marketable skill — it is instead trying “to give students countervailing, enduring values.” Put that in the promotional materials, and then see how many students apply. and how many law firms, especially in the current climate, are willing to hire its graduates. My guess is that a law school that marketed itself that way would be able to generate enough tuition to pay its faculty at the rate of, oh, philosophy professors, who are in the business of imparting “countervailing, enduring values,” and don’t pretend otherwise.

    Larry Rosenthal
    Chapman University School of Law

16. Vladimir - September 24, 2009 at 6:52 pm

    Larry: there is such a school, and it’s pretty open about it its emphasis on theory. And Yale Law School isn’t hurting for customers.

    Mike: Ronald Dworkin merely has a J.D.; no Ph.D.

17. Bruce Boyden - September 24, 2009 at 8:15 pm

    Larry, I’m not sure what the alternative is to law professors wondering about how to prepare students for practice. Law professors NOT wondering about how to prepare students for practice? It seems to me that more thought is better than less thought here.

    Perhaps you’re suggesting that the better alternative is to staff law schools with different professors. But as a former Secretary of Defense might have put it, you go to class with the professors you have, not the professors you might want or wish to have at a later time.

18. Larry Rosenthal - September 24, 2009 at 8:32 pm

    Vladimir: There is, of course, always an exception that proves the rule. Yale is notorious among those who hire recent graduates because its students know so little of what they will need to practice. The feeling to date has generally been that Yale students are so smart that they can be readily trained. After the current recession, however, law firms and their clients are not so happy about absorbing training costs that law schools externalize to firms (and their clients) because they would rather focus on scholarship (of a largely theoretical bent of little use to practitioners — but that’s another story). In any event, a school without Yale’s student profile that attempted its pedagogy would get slaughtered in the marketplace — no other school has the stats of Yale’s admitees. But if you were right that law schools could succeed by marketing themselves as unconcerned with “helping law students ’succeed’ in practice under current practice standards,” then more of them would market themselves to applicants that way. As it happens, they don’t — when it comes to attracting applicants, law schools are all about practice preparation.

    Bruce: You raise an important question. Law schools — especialy those who think of themselves as elite — have for some time focused hiring on people who know little of the practice of law. These people, of course, lack the capacity to make sound judgments about practice preparation. But instead of admitting that, like Vladimir, they all too often persuade themselves that pursuing their own interests in theoretical work is as good for their students as it is for their scholarship. As legal academics, we should better understand these issues of institutional competence — they arise often enough in the law, after all. Academics with little knowledge of the practice of law should not pretend that they are competent to decide what pedagogy is best for practice preparation. Rather, they should solicit and defer to the views of hiring partners and others experienced in the profession who can provide sound guidance about the needs of the profession — such as those who produced the Carnegie and McCrate reports.

19. James Grimmelmann - September 24, 2009 at 8:40 pm

    Vladimir, just so I’m sure I’ve got this right:

    Legal practice “needs” reform; students “absolutely need” to learn about legal change; they “need” as much theory as we have time to teach them. Indeed, a lawyer can “only” grow professional if he or she has a strong theoretical basis.

20. Vladimir - September 24, 2009 at 10:47 pm

    What I’m trying to say, in an admittedly provocative and a bit over the top way, is that there are some things you can’t get in practice because they require reflection and study time, and that there is value to encountering these things before entering practice. That includes a theoretical understanding of various aspects of law, to help make the pieces fit together better, and that includes an understanding of the nature of legal change. I don’t think that legal education, just because it is professional, should deviate sharply from the liberal arts ideal. Just as we should train undergraduates in English literature, rather than the current techniques of business marketing, even though most will never use literature directly in their professional lives, so too we should train lawyers in a humanistic, liberal artsy way, and for the same reasons. One never knows what she will encounter in practice over the course of a lifetime, and only a broad, mind-clearing, flexible education can help prepare one for the inevitable contingencies that will arise. I guarantee you that the forms one learns to draft as a 2L won’t be in use in 20 years time. Mental and professional flexibility comes from broad, theoretical education, not from mechanical work.

    May I give a more concrete example? Suppose you took civil procedure three years ago, in a purely black-letter, mechanical, “practical” course. The professort’s goal was to get students ready to do what the managing partner wanted from them on day one. So you never talked about what functions pleading serves, or the history it developed out of, or the vision of Charles Clark and the FRCP drafters, or the policy trade-offs involved. Instead, you learned what it took to draft a complaint. Well, now Iqbal has come along, and the nature of pleading has changed radically. Lawyers need to try to assimilate Iqbal and what came before it; they need to see how Iqbal fits in, or rends, the fabric of the law; and they need to figure out where, exactly, to go from here. But your education, given its purely “practical” orientation, in this area is now obsolete. It has proven mighty impractical in even the short-intermediate run. I think education should have a longer shelf life. By studying theoretical issues in pleading, policy issues, historical antecedents such as code pleading and the origins of the FRCP, a student would be in a far, far better position to make sense of the change in a way that will be productive for her clients. And if a student knew about how the rule making process works, and what kinds of policy issues are at stake in pleading specificity questions, they would know as well about how to go about trying to deal with and potentially undermine Iqbal going forward. But if they were simply trained in mechanical complaint drafting, without this rich theoretical background, they would be less useful as lawyers, leaders, and citizens.

    So do I think lawyers can “only” grow professionally with a strong theoretical foundation? No, there are too many divergent paths for personal and professional growth in our complicated world. But if I had to guess which kind of law school grounding would be most conducive to professional growth, I would pick a strongly reflective one, based on the interconnection between existing doctrine and deeper theoretical questions. Practice is fragmented by its nature. You don’t get to see the law whole, because you have clients with particular problems. All too often, where you stand on important legal matters depends on where you sit. (How many plaintiff lawyers have you met who favor tort reform? How many big firm defense lawyers tend to think highly of plaintiffs’ attorneys? A theoretical education might help folks see things a little less partially.) Law school is the one early chance you have to see it from a broader perspective, and I think it would be a shame to squander that opportunity merely to make managing partners happier with the practice-ready skills of their new associates, skills which could be picked up in the course of a short time.

    As a thought experiment, consider this. We don’t have a course in what I take from my few years in practice to be the most important big firm professional skill of them all: rain-making. No one wants to be the brilliant service partner, who can actually do the work. It’s the guy who can swill the scotch and bring in the clients who is top banana, who can bring down a firm by leaving with his book of business. Isn’t that what we should be training our students to be, if we define our success as educators as making the profession as it is happy? And if it is, why aren’t we training them in these even more practical “skills.”

    In short, I think the best lawyers are the best legal analysts; that’s why Yalies do well over the course of their careers at legal practice, despite knowing nothing “practical” going in. Perspective is all, and a broader, more theoretical legal education provides it.

21. Larry Rosenthal - September 25, 2009 at 8:20 am

    Apparently, Vladimir thinks that practice preparation consists of learning how to use formbooks and swill scotch with clients. If that’s practice preparation, I can agree that it is not for law schools. Yet, if Vladimir had a more sophisticated understanding of legal practice, he would understand that not everyone who can use a formbook and drink with clients succeeds in the profession. People with Vladimir’s limited understanding of the skills necessary to succeed in practice surely should not be making decisions about legal pedagogy. All of the issues that Vladimir describes confront other types of preprofessional education, such as business and medical schools, and yet their curricula are far more engaged with the profession than is legal education.

    Theory is only going to get you so far. My civil procedure prof, the great Abe Chayes, had contempt for theoretical and conceptual approaches to procedure — he thought that they did nothing for the client who actually needed help. Understanding the evolution of the Field Code into the Federal Rules of Civil Procedure still isn’t going to help you identify the kind of fact investigation that is going to be necessary to satisfy Iqbal, is it? Even if you went to Yale.

22. Vladimir - September 25, 2009 at 8:50 am

    Larry, I am trying to raise serious questions here. Just as Holmes said the black letter man is not the man of the future, I’m suggesting that the person prepared in the nitty gritty of law practice as it currently exists isn’t the lawyer of the future either. The legal liberal arts-like law student will make the best lawyer in the long run.

    So yes, I agree that learning about fact investigation is important. And a student has to know the rules. Of course. But, drawing on Abe Chayes, I think there is more to it also. One ought to think deeply, for instance, about the function of litigation. Your post assumes that a lawyer should try to satisfy “the client who actually needed help.” Well, yes, of course, but to what extent? Should one try to use the discovery rules to bury the other side and force a settlement in an otherwise meritorious law suit? Should one even violate the discovery rules to small degrees, since the worst that will happen to you in most cases is a small sanction,which might be worth it if it helps the client? Is a lawyer more a representative of a client or an officer of the court? And there is of course the great Abe Chayes/Owen Fiss question: is litigation just about resolving client’s disputes, or is it primarily about declaring public norms, with the client a vehicle for helping that happen? Students might also consider whether our adversary system even a good one, and should we try to push it toward a more inquisitorial model?

    I submit that these are questions that need to be examined in law school — esp. because there will be no opportunity to examine them in practice. Practice will tend to push toward the do what the client needs mode, because it is paying the bills. If law school can raise questions in a lawyer’s mind, that might plant seeds that, fertilized by years of practice, might bloom into interesting plants and flowers. Such seeds might enable our lawyer to have a countervailing view and at least problematize the corporate client-at-all-costs view, and I think that’s an important thing.

23. John Steele - September 25, 2009 at 10:37 am

    We’re having a complex debate about the complex task of deciding the curriculum for law students across 200 graduate schools. I’d like to shift the debate slightly from “what curriculum?” to “who decides?”

    There are lots of potential “deciders,” including deans, professors, judges, practicing lawyers, and law students themselves. Everyone comes to the debate with some economic self-interest, whether or not they aware of that. Everyone comes to the debate with greater or lesser experience and knowledge. (I’ll discuss Vladimir’s factual knowledge and experience in another comment.)

    Our society has a remarkably powerful and satisfying tool for making decisions in situations like that. Most often, we give priority to the informed and enlightened self-interest of the people shelling out the money. In this case, that would be the students.

    Giving students far greater say over the curriculum would be administratively easy. But professors would have to share power. Now, you might have the impression that as a group law professors strongly favor progressive reform, favor redistribution of power to the less empowered, and favor progressive innovations that undo historical preferences. You’d be mostly correct. But you will notice that once the subject of asking students for input about curricular reform, the faculty typically starts sounding like status-quo conservatives, if not reactionary ones! (Larry Rosenthal and some others excluded, obviously!) When it’s discussed at an academic panel, you can even hear the tone of voice change when the topic comes up.

    There is also an argument that the students are too stupid or too inexperienced to choose wisely. Well, we trust them with the decision to forego three years of income and take on an additional $90,000 in debt. Given that, how can we claim that they lack the intelligence to shape their own curricular choices? Besides, the Vladimir’s and like-minded professors may well convince the students that what they need is theory, theory, and more theory. Judges and practicing lawyers, to whom the students would turn for input as they shape the curriculum, might well say the same thing: “what I regret is not taking enough high-theory courses.” Or, then again, they might not. Let’s see.

    Sometimes the argument is offered that since learning theory is undeniably useful in some ways, we can’t reform the curriculum because it would drive out all theory. Again, some enlightened students would choose some theory. And in more of market setting, we’d see some schools thriving on a theoretical approach and others choosing a practical approach. Don’t worry about Yale! I’m guessing they’d do well in the brave new world where students shape the curriculum. In a more market-like setting, a hundred flowers would bloom—whereas today we see way too much uniformity.

24. Mike - September 25, 2009 at 12:33 pm

    Mike: Ronald Dworkin merely has a J.D.; no Ph.D.

    Yes, but genius can do in 3 years what takes other 5. I don’t see much genius in the ordinary Civ Pro law professoriate.

    I’m suggesting that the person prepared in the nitty gritty of law practice as it currently exists isn’t the lawyer of the future either

    I agree. Most lawyers will never appear before the Supreme Court. Most lawyers do not read for leisure, or think deeply about legal or philosophical issues.

    Most lawyers handle hum-drum legal affairs involving divorce law, slip-and-fall lawsuits, DUIs, traffic tickets, and small stakes business disputes. Even most BigLaw lawyers do mind-numbingly boring commercial litigation. Do you really need an understanding of Philosophy of Law to file 10,000 discovery objections? Or to sort through boxes of documents for privileged material?

    So…Why do all of these people do garden-variety work that’s on an intellectual level of a sales position “need” 3 years of theory-based education?

    Incidentally, this entire debate would be a non-debate in a free market. Law is not a free market. The states regulate who can be a lawyer – and each state requires a J.D. Thus, the hapless student who wants to practice at her father’s immigration law firm is forced to attend 3 years of Philosophy of Law-Lite taught by J.D.’s who think they are Ronald Dworkin.

    If students want to learn the law, do your job: Teach them the law.

25. Vladimir - September 25, 2009 at 12:39 pm

    But Mike, that begs the question: what is the law?

26. Mike - September 25, 2009 at 1:25 pm

    But Mike, that begs the question: what is the law?

    Hardly. If you can’t figure out what “the law” is, sue someone, or be sued, or get charged with a crime. You’ll figure out rather quickly that there is something called “the law.” And “the law” is not the stuff being taught in law school.

27. Vladimir - September 25, 2009 at 2:05 pm

    I’d like to end this on a high note, rather than a polemical one, given how much passion Jon’s post has stirred up. Here is W.H.Auden’s meditation on the “what is law” question. It has to be the most beautiful work about law that I’ve read.

    Law Like Love
    W.H. Auden

    Law, say the gardeners, is the sun,
    Law is the one
    All gardeners obey
    To-morrow, yesterday, to-day.
    Law is the wisdom of the old,
    The impotent grandfathers feebly scold;
    The grandchildren put out a treble tongue,
    Law is the senses of the young.

    Law, says the priest with a priestly look,
    Expounding to an unpriestly people,
    Law is the words in my priestly book,
    Law is my pulpit and my steeple.

    Law, says the judge as he looks down his nose,
    Speaking clearly and most severely,
    Law is as I’ve told you before,
    Law is as you know I suppose,
    Law is but let me explain it once more,
    Law is The Law.

    Yet law-abiding scholars write:
    Law is neither wrong nor right,
    Law is only crimes
    Punished by places and by times,
    Law is the clothes men wear
    Anytime, anywhere,
    Law is Good morning and Good night.

    Others say, Law is our Fate;
    Others say, Law is our State;
    Others say, others say
    Law is no more,
    Law has gone away.

    And always the loud angry crowd,
    Very angry and very loud,
    Law is We,
    And always the soft idiot softly Me.

    If we, dear, know we know no more
    Than they about the Law,
    If I no more than you
    Know what we should and should not do
    Except that all agree
    Gladly or miserably
    That the Law is
    And that all know this
    If therefore thinking it absurd
    To identify Law with some other word,
    Unlike so many men
    I cannot say Law is again,

    No more than they can we suppress
    The universal wish to guess
    Or slip out of our own position
    Into an unconcerned condition.
    Although I can at least confine
    Your vanity and mine
    To stating timidly
    A timid similarity,
    We shall boast anyway:
    Like love I say.

    Like love we don’t know where or why,
    Like love we can’t compel or fly,
    Like love we often weep,
    Like love we seldom keep.

28. Mike - September 25, 2009 at 2:13 pm

    That’s great poetry. Do you really think family law lawyers who spend hours litigating over who will get the lamp shade, read poetry?

    Seriously, Vladimir, I get where you’re coming from. I just disagree with your position. The reality is that most lawyers do not need or want a degree in Philosophy of Law.

    Most ham-and-egg lawyers have no intellectual curiosity. Give them their trade school certificate and send them along their way.

    If that makes law professors feel insecure (”I’m more than a ticket puncher!”), then be the change you want to see in the world. Instead of torturing helpless students, use your appreciation for how “legal change interacts with social change and the ways in which theory impacts doctrine,” to actually practice law.

    But you don’t want that, do you? You want to do the work glorified graduate students in Philosophy programs do. Except a law prof does graduate student work while earning six figures.

    And thus the realpolitik of this disagreement is revealed.

29. Recent Law School Grad - September 28, 2009 at 9:09 am

    From my experience as a young litigator and recent grad, I would say both sides are partially right. You know, all you need to do is to figure out what’s the purpose of law school? To train students to be academics? (Law professors would like this.) Or to train them for real life practice. Problem is many law professors don’t have significant experience beyond teaching. When I become a civ pro professor I will do it differently. I will teach my students how to navigate the fine points of personal jurisdiction as well as actually show them what a request for production looks like. To be a litigator all you need is a good course in Civ Pro, an evidence class, and of course PR to cya. You learn as you go. The transactional guys need Contracts and M&A and they’ll do fine; they can learn as they go too.

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