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Evolving Towards the Law Classroom of Tomorrow

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13 Responses

  1. Dave Hoffman says:

    Hi Josh,
    Interesting post. You say that students are taught “how to “think like a lawyer” (whatever that means)”. Is your skepticism that professional situation sense has some content built on some data, or is it more visceral? My perspective on this has shifted pretty radically in the seven years i’ve been teaching. From amused skepticism – maybe akin to yours – I’m now a strong believer that teaching “thinking like a lawyer” is the core of law school’s value proposition.

    FWIW, I agree that automation of some kinds of legal services is coming – though I think that it probably depends on what you mean by “legal services,” and quite a bit more on some yet-to-be seen developments in the laws of professional malpractice and tort liability.

  2. Josh Blackman says:

    Hi Dave, thanks for your kind words.

    With respect to “thinking like a lawyer,” I added the parenthetical because I recognize that most lawyers and profs have a slightly different conception of what that term means. I would tend to agree with you that the thought process of engaging in the practice of law is extremely important. Defining that process, though, is up for debate.

    With respect to the future of automation, I agree that professional malpractice and tort liability, in addition to legal ethic rules, as well as the generally cartelized nature of the profession, will have to evolve to permit these changes. I look to Google’s attempts to introduce self-driving cars as an analogy (See e.g., http://www.nytimes.com/2011/05/29/business/economy/29view.html?_r=1). Think of the countless regulations and legal implications that Google will have to overcome to make those cars legal. But assuming society wants cars that drive automatically, the laws will change. Similarly, who wouldn’t want to get rid of expensive lawyers (tongue in cheek)? I think law may follow a similar course to enable this progression.

  3. Larry Rosenthal says:

    It is perhaps worthwhile to ponder the meaning of “thinking like a lawyer” a bit. Lawyers must be intensely practical people — after all, what a client wants is a lawyer capable of providing a solution that works to the client’s problem. The professiorate, however, is increasingly peopled by theoreticians who have little if any practical experience. One has to wonder if a professiorate consisting of such theoreticians are really capable of teaching students to “think like a lawyer.” As it happens, I have been pondering this problem, lately, having recently published an zrticle using the legal career of John Yoo to illustrate what I regard as the perils of the rise of the theoretician in the legal academy. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1630574

    Larry Rosenthal
    Chapman University School of Law

  4. Josh Blackman says:

    Larry,
    I think you make some very good points, and echoe a lot of the undercurrents in the Carnegie Foundation report.

    Moving forward, as the profession evolves more towards a data-driven, information-backed practice, this gap between theoretical academics and practitioners may widen further.

    That is why I think it is important for the professoriate to take some time to be introspective, look at the current state of practice, look where its going, and hopefully, craft pedagogy to prepare students for that end.

  5. Shag from Brookline says:

    On “how to ‘think like a lawyer’ (whatever that means),” here’s a quote of my conlaw Prof. Thomas Reed Powell:

    “If you can think of one thing without thinking of something else to which it is inextricably connected, then you have a legal mind.”

    Based upon my classroom experience back in the fall of 1952, there’s a tad of tongue in cheek in this.

  6. dave hoffman says:

    Larry,
    I think that the claim that law professors are intensely engaged in theory (instead of practice) i) makes hay of a distinction that is overstated; and ii) isn’t particularly descriptively accurate. The vast majority of articles that lawyers write seek to explain doctrine & to illuminate legal practices. Do you disagree?

  7. Larry Rosenthal says:

    Dave,

    I’m not aware of any empirical work on the proportion of articles addressing “theory” as opposed to “practice,” and any empirical study would probably be plagued by selection bias. But, perhaps we can agree that academics are probably not the most reliable judges of the value of their work outside of the cloistered world of the scholar. Outside of that world, there does appear to be a fairly widespread view that legal scholarship has little of use to say to the bench and bar. There is, of course, a long line of distinguished critics of the value of legal scholarship in the bench and bar, from Harry Edwards to John Roberts.

    To pick one recent example, Nicholas Quinn Rosenkranz has recently published two articles in the Stanford Law Review arguing that we can gain some insight into constitutional interpretation by examining how sentences in the Constitution are structured. The articles were placed in an outstanding law review, have received raves from other scholars, and many in the academy might regard them as doctrinal rather than theoretical. Yet, a practitioner would learn pretty much nothing of any practical value from these articles, which have almost no significance for any issue one would be likely to confront in practice. I intend no criticism of Professor Rosenkranz; he is appropriately (if not admirably) responding to the status-seeking incentives within the academy. If scholarship of this little use to the bench and bar is regarded as high-quality work within the academy, however, we should not be surprised that the academy is likely to produce scholarship of little significance to the bench and bar.

    The Carnegie Commission makes a compelling case that it is impossible to develop professional judgment without ample experience in exercising professional skill and judgment with respect to real-world problems. A generation of legal scholars with little of the requisite experience is therefore unlikely to have developed much in the way of professional skill and judgment, and both its teaching and scholarship are therefore likely to reflect this deficit. Indeed, much of John Yoo’s scholarship might be regarded as doctrinal, yet even the Bush Administration found most of his legal advice to be untenable — a point I review at perhaps regrettable length in my article as I seek to demonstrate that John Yoo’s success as a scholar was accompanied by a striking lack of the kind of professional judgment necessary for success in the practice of law.

    One can disagree with the Carnegie Commission’s assessment of the process by which professional skill and judgment is developed, but that requires advancing some alternate view of the character of professional skill and judgment that can be supported by adequate evidence. I have yet to see that kind of alternate view advanced by the critics of Carnegie.

    Larry

  8. Josh Blackman says:

    Larry,

    I’ve seen a number of proposals suggesting separating the way the law is taught. There would be a professional-type school, presumably taught by practioners, and a graduate-type school, presumably taught by more theoretical type profs. In the former, I’m sure there would be some theory, but it would mostly be nuts and bolt. The secondary program would focus more on Rosenkranz type articles.

    What do you think of that type of proposal?

  9. dave hoffman says:

    Larry,

    I’m sorry, but I don’t find that response terribly compelling. The Carnegie report says many – many – things, including plenty of praise for existing institutions and scholarly norms.

    And sure – some prominent judges want more of certain kinds of scholarship and less of other kinds. (Orin Kerr had some interesting posts on this in the last few years.) And I don’t deny that there is some scholarship that we might think of highly theorized or (more flatteringly?) more like “basic science” in its orientation toward things that lawyers would ultimately want to know. But that doesn’t tell you a thing about most scholarship, or even about the utility of theory.

    The bottom line is that this kind of debate is badly in need of some kind of real evidence. What do you think of this this article?
    http://ssrn.com/abstract=1640681
    For me, this suggests some caution before lamenting the terminal decline of the utility of law professors’ work.

  10. Josh Blackman says:

    I think there are two distinct issues that are often blurred together, with respect to the gap between theory and practice in law schools–what goes on inside the classroom (teaching) and outside the classroom (scholarship).

    I’ll leave aside for the moment the issue of the value of scholarship, as there is substantial body of scholarship (unsurprisingly!) on this point.

    My concern is more about what students are actually learning in the classrooms from the professors. Unfortunately, this often seems to be a secondary concern.

  11. Larry Rosenthal says:

    Dave:

    I have read he study that you reference. It is a very fine paper, and it is appropriately circumspect about how much we can learn from citation counts. My own guess is that rates of citation may be more attributable to the role of law clerks (fresh off law reviews) in opinion writing, who like to cite legal scholarship to dress up an opinion (and to validate all that work they just did on a law review) rather than to any meaningful utility that legal scholarship has for judges. I would be more impressed by a survey of judges and practitioners than a study of citation counts. While it is surely the case that most legal scholars believe that the theory they like to emphasize in their teaching and scholarship has greate utility for practitioners, it seems to me that the views of those who produce theory represent the least reliable group to evaluate its utility to others.

    As for Carnegie, I am not sure whether you diagree that practical experience is necessary to the development of professional skill and judgment as the Carnegie report claims, but if so, surely you need to embrace some alternate theory about how theoreticians can impart professional skill and judgment. In my experience, theoreticians rarely if ever make such a claim. Instead, they usually say that students should learn professional skills when they are actually practicing law. In my article, I argue that the market is moving against this view — law firms are increasingly disinclined to permit law schools to externalize training costs onto them.

    Josh: Departmentalizing law schools would surely help — at a minimum, it would ameliorate what is presently a kind of false advertising problem in which we present all faculty members as qualified to teach students to practice law when, in reality, many if not most likely are not. The real question, in my view, is how much of the law school curriculum should be devoted to theory, and how much of its faculty should be compromised of those who have not developed professonal skill and judgment. We are, after all, training lawyers, not theorists or scholars. Even at Yale, something less than 20& of the graduating class goes into the academy. Surveys of law students show that by the second year, law students demand practice-oriented courses, and surveys of employers show that they demand more practical skills in recent graduates. There is obviously some room in the academy for theory, but how much of a preprofessional curriculum should be devoted to theory?

    Larry

  12. A.J. Sutter says:

    Just a rash thought: maybe the better time to teach theory is after the student has some practical experience. Of course, optimally this would entail the professor having some practical experience, too — as well as having some interest in connecting theory to practice. (I guess it also assumes that theory should be taught, not just written about.) E.g., in both a magazine column and an executive training course for a major multinational, I’ve taught senior and rising mid-level executives how Aristotle, Kant, Husserl, and Kripke/Putnam vs. Quine, among other topics, are relevant to their daily work; this has been very well received (in Japan, at any rate).

  13. Shag from Brookline says:

    I appreciate Larry Rosenthal’s providing a link to his article as I have been a fan of his master plumbing techniques with Heller and McDonald v. Chicago on the Second Amendment. Larry plumbs John Yoo as a practicing lawyer in extensive detail and I read the entire 70 pages of his article. Those who might not have the time to do likewise might focus on Part II. “The Role of Professional Ability in the Teaching of Law” which begins at page 1611 (through page 1632) with respect to theme of this post. Larry raises many questions and problems that should be pursued from within legal academia; but don’t hold your breath.