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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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

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.

Larry Rosenthal
Chapman University School of Law

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.