“The first thing we do, let’s [train] all the lawyers.”
posted by Jeffrey Kahn
David Segal has a front-page, above-the-fold article in today’s New York Times, What They Don’t Teach Law Students: Lawyering. Segal blasts legal education for failing to produce prêt-à-porter lawyers sized to fit the needs of everyone from Skadden Arps to solo practitioners. Segal also denies the value of “pure” research — law review articles and other scholarly output that do not satisfy his requirements for immediate application to daily practice. Gerard Magliocca and Alex Guerrero already commented on one of his examples. As with Dick the Butcher’s suggestion in Shakespeare’s Henry VI, Part 2, Segal’s article is wrong on both teaching and research.
First, teaching. I think that when law schools succeed at their mission they do produce graduates with skills ready for use in any legal environment. It’s just that developing the skill set that Segal prioritizes (such as his opening example: filing a certificate of merger with a secretary of state) is not the sole, let alone primary, goal of legal education. Those form-filling and filing skills are important, but best honed by firms that daily engage in those specialized, localized, and technical operations. Law schools, in contrast, have the advantage in teaching the general skills and knowledge that firms of all sizes (as well as government agencies and corporations) have neither the time, inclination, nor resources to perfect. But these organizations desperately need these things in the lawyers they hire: critical thinking, professional standards, ethical judgment, and historical perspective (to name a few).
Unlike medical schools and engineering programs, law schools do not set out to create technicians. (I suspect that the best medical and engineering institutions don’t have this goal either, but this is the common comparison.) Law schools, especially, should produce graduates comfortably inclined to question the status quo, challenge assumed truths, and think about the long-term implications of their actions as members of a learned profession. Over time, one hopes that their training will combine with experience to produce in them judgment about when each skill should take a leading role. Lawyers with these skills are needed in any age, but especially one that produced such colossal fails ranging from Enron to government-sanctioned torture.
Second, research. I also reject Segal’s essentially anti-intellectual critique of research. Last spring, I was asked by a high-level Russian official to write a report on a verdict in a criminal case. That report explored the many departures from Russia’s obligations under the European Convention on Human Rights to be found in that verdict, but it also raised serious questions about fundamental aspects of Russian law. The report could hardly qualify as research readily useful to the day-to-day activities of a practitioner at the bar of any American state or the present Russian one. Nevertheless, I found that the research that I conducted, the exercise of drafting my report, and the report itself generated useful starting points for several discussions in classes that I teach on American law. Those conversations ranged from an aspect of the famous Chenery case in my Administrative Law class to an editing exercise in a seminar on counterterrorism. Needless to say, I hope it also makes a positive impact in Russia when it is released next month.
Those teaching moments were hard to foresee at the outset of my research. But anyone who values knowledge for its own sake would not be surprised by the serendipity my Russian law work produced in my American law classrooms. That the report led to invitations to speak to groups at universities and thinktanks in the U.S., U.K., Sweden, Norway, Finland, and Belgium also suggests that what counts as valuable research might benefit from a less cramped definition than Segal and company provide.
November 20, 2011 at 8:55 pm
Posted in: Education, Law Practice, Law School (Scholarship), Law School (Teaching), Uncategorized
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Responses (7)
Howard Wasserman - November 20, 2011 at 10:35 pm
You hit on one my pet peeves–the assumption that medical schools create pret-a-portier technicians. I am sure that a 1st-year resident is no more able to practice medicine without supervision than a 1st-year law graduate. Nor are patients anxious to be treated by 1st-year residents. This is repeatedly overlooked.
Brett Bellmore - November 21, 2011 at 7:09 am
Anyway, what’s wrong with setting out to create technicians? That’s essentially what most of the output of any program are going to be doing for a living, if the educational program is actually going to help them make a living. I’d even go so far as to say that, for most fields, everything besides the technicians exists only to produce the technicians.
Forgetting that is part of what’s driving tuition inflation.
Ken Rhodes - November 21, 2011 at 8:20 am
@Howard: Your point is well taken, but could be made even stronger–medical schools don’t turn out first-year residents; they turn out interns.
Carolyn Elefant - November 21, 2011 at 8:25 am
We don’t need a separate education for Skadden wannabes and solos. We are all lawyers. I’ve represented energy companies and people in danger of losing their homes in foreclosure. In every case, I drafted an ethically compliant retainer agreement, analyzed the issues, read applicable case law, consulted with past forms and examples where needed and so on. Why would a solo practitioner need an education that’s different from that provided to all lawyers?
Jerome Kowalski - November 21, 2011 at 10:59 am
Law schools, largely ignoring the need to train their graduates in the practical skills of day to day lawyering were content to spew out graduates who theoretically had a single skill, namely having learned to “think like a lawyer, ” whatever that means. The needed task of training lawyer practical skills were relegated to law firms, which in turn, billed clients for these efforts.
This used to be a great gig for the law firms. They took raw law school graduates with, as the author correctly notes had been taught much theoretical and historical knowledge and law firms then, in turn took to the task of teaching law school graduates the skills of practical lawyering largely by trial and error and then charging clients an hourly fee for these efforts. The clients have caught on and have said no mas. We still need to train our young lawyers the practical skills of day to day to day lawyering. We used to run a great gig under which we took raw law school graduates whose only particular skill was to “think like a lawyer” (whatever that means) and teach them the skills of practical lawyering largely by trial and error and then charging clients an hourly fee for these efforts. The clients have caught on and have said no mas. This gig is up.
The cost of recruiting and then training young lawyers is enormous. If we add the hard costs of recruiting summer and first year associates, the soft costs of recruiting, the compensation paid to summer associates and first and second year associates with the expectation of producing a productive and profitable third year associate, the cost per lawyer may well approach a staggering $1,000,000 per lawyer at some law firms. This whopping expense was made less painful when we were able to charge clients an hourly fee for teaching our own lawyers basic skills. But, those days are gone. Clients are not willing to pay for first and second year associates.
Well then, how are we going to train new lawyers? How about if we followed the rest of the world and imposed some form of mandatory clerkships as a condition for bar admission? This is precisely what I have proposed in detail at http://kowalskiandassociatesblog.com/2011/10/27/now-that-clients-won%e2%80%99t-pay-for-training-young-associates-how-are-we-going-to-teach-young-lawyers-the-skills-of-lawyering/
A.J. Sutter - November 21, 2011 at 12:12 pm
I think the discussion is too all-or-nothing. The fact is, a lot of legal research is quite silly. That doesn’t mean that all legal research that doesn’t deal with practical issues faced by practicing lawyers is silly. And some sort of clerkship or apprenticeship program for bar candidates is fine (as long as it’s adequately funded, e.g., by the state, as in Germany). But that doesn’t mean that law schools shouldn’t teach anything practical, and leave it all for the clerkship. And it’s fine for some faculty to bring a philosophical or interdisciplinary background to the mix. But that doesn’t mean it should be so difficult for experienced practitioners (say 10+ years) to join law faculties.
Apropos of this last topic, I was struck by Jason Mazzone’s critique of the Segal article:
There are a couple of fallacies here. For one, does it therefore follow that it’s preferable to fill up teaching slots, permanently, with people who never acquired practical lawyering skills? For another, mightn’t senior practicing lawyers be much better connected with the world of practical lawyering so as to be able to stay on top of what’s happening currently, than professors of law and anthropology who bailed out midway in their second year? Someone who’s spent 20 years in the business probably knows a lot more partners at a lot more firms than does a professor of law and literary theory who approaches Article 9 as “reassembling the social.”
I’m not at all pushing the neoliberal notion that law schools ought to train students to be able better to serve megacompanies, finance, etc. In fact, not all practitioners have that orientation — even if they’ve worked at big firms or big companies. (I bet, BTW, that if you scratch an experienced lawyer who’s interested in teaching, you’ll find someone with a heck of a lot more philosophical/jurisprudential disposition than you’ll find in an economics Ph.D.) Nonetheless, is it far-fetched that law students might benefit from learning about contracts, say, from someone who’s actually drafted and negotiated hundreds of them, or about patents from someone who’s written, prosecuted and/or litigated a comparable number of those? Or about professional responsibility from someone who’s actually been in some tough situations himself or herself? Again, avoid the all or nothing: for law faculties to be a whole lot more welcoming to practitioners than they are currently doesn’t mean that everyone on the faculty needs to have the same professional experience.
Mike Zimmer - November 21, 2011 at 6:23 pm
On the theme of requiring an internship or residency, I would look into getting rid of bar exams but in their place impose government funded participation of law graduates in providing legal services to those who are now underserved. This should be under the supervision of an experienced lawyer.
One area where there is a tremendous failure in the provision of legal services involve employment discrimination. A huge percentage of these cases are pro se. Presumably, some are not good cases to bring. But I am sure that many are cases that are good on the substance but lack sufficient payoff to make them economically valuable enough for a private lawyer to take the case.
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