March 15, 2004
Solum: What do law schools teach?
by Guest Contributor
Lawrence Solum is a Professor of Law at the University of San Diego, where his areas of concentration are procedure, technology law and policy, and philosophy of law. He maintains the Legal Theory Blog, as well as the associated Legal Theory Lexicon. –Ed.
Last week I had dinner with a very prominent lawyer. He graduated from a top-ten law school, argues cases before the California Supreme Court, and has served as the President of an important bar association. The conversation turned to legal education. I offered the opinion that his law school had been known for a lawyer-focused legal education. He expressed surprise, “Not when I was there,” a period that is now a good many years in the past. As the conversation progressed, we discovered that the curriculum that I thought was lawyer-focused—an emphasis on legal doctrine and traditional courses from torts to federal jurisdiction—was the very same curriculum that he thought was highly theoretical. He looked at the traditional curriculum and noted the absence of skills courses and clinical offerings. I looked at the same curriculum and noted the absence of interdisciplinary and theory offerings.
A few weeks before I was at another dinner, this one with a very prominent legal academic. She has held tenured positions at more than one top-ten school and currently holds one of the most prestigious (and well-supported) chairs in all of legal academics. The conversation turned to the state of the legal academy, and she made the point that her colleagues from other disciplines in the Law and Society movement frequently make the arguments that legal academics “have no discipline.” What she meant was the legal academics do not share a core set of disciplinary assumptions and research methods. Historians are trained to immerse themselves in the original materials—the archives, records, pamphlets, and diaries. Sociologists are trained to do both survey and experimental research. Economists are trained to use a set of mathematical techniques. But what do academic lawyers know how to do? What do law schools teach?
Once upon a time, there was a standard answer to these questions. Law schools were said to teach students “how to think like a lawyer” and legal academics were those who could think like a very smart, very knowledgeable, and somewhat theoretical lawyer. The standard answer has come under increasing pressure, both inside and outside of the legal academy. From inside the academy, the pressure comes from those who claim to be heir to legal realism. On the left, the critical legal studies movement advanced the indeterminacy thesis, arguing that thinking like a lawyer was a sham. And if all the law schools do is teach lawyers to put a thin veneer of legal mumbo-jumbo over arguments that are essentially political, then it is hardly clear that law students need three years of drilling to become sufficiently accomplished legal rhetoricians. From both the right and increasingly the left, the law and economics movement has argued that legal problems are economic problems. Because the law school curriculum rarely provides a systematic and rigorous introduction to economic methods, legal education fails for most students, especially for those who enter the legal academy without an advanced degree in economics. Legal philosophers, sociologists, and historians might offer similar critiques—although these perspectives speak more to preparation for the academy than to the training of practicing lawyers.
But as the legal academy has become more theoretical and more interdisciplinary, the bar has become increasingly worried about the relevance of a legal education at an elite law school to the practice of law. Although the vast majority of American law schools have curricula focused on doctrinal courses supplemented by skills and clinical offerings, it is now possible to graduate with high honors from a top law school without a deep knowledge and understanding of legal doctrine. At the extreme, some students graduate from a very prestigious law school with one semester of somewhat traditional doctrinal courses followed by five semesters dominated by seminars the titles of which read like a bibliography of the recent books and articles of the law school’s faculty.
What do law schools teach? The answer to this question is up for grabs, in this post-formalist, post-realist, interdisciplinary era. And the answer to the questions of what law schools should teach is intimately connected to a much bigger question, “What should the law become?” Some believe that the courts have been and should continue to be the battleground on which the great political issues of the day are resolved. Ultimately, the aim of legal education then would be to produce lawyers who will plan the litigation strategies that will transform society and produce the rhetoric that will empower sympathetic judges and confuse those who are not. And what about judges and academics? They too are warriors, who wage the war with the opinion or the article, rather than the brief or the motion. This is a frightening future—because law that is a battleground is unlikely to achieve the rule of law—the very great goods of predictability, certainty, and protection from arbitrary power that only formally constrained legal decision making can provide.
What should law schools teach? One of our possible futures is a neo-realist, neo-formalist world. In that world, law schools would continue to reach future lawyers, judges, and legal academics to “think like a lawyer,” but they would teach more than that. Legal formalism about rule application does not entail legal formalism about rule making. Quite the contrary. Law schools should teach doctrine and skills, but in a context that is deeply informed by legal theory, economics, political science, sociology, and philosophy. Lawyers have a discipline—the formal methods of legal reasoning and the legal hermeneutic. But because that discipline is not hermetically sealed, a legal education needs to develop a critical faculty and ability to learn that can cross disciplinary boundaries. Learning to think like a lawyer, in this neo-realist, neo-formalist age, means learning to think outside the rigid assumptions of particular disciplines. Learning to think like a lawyer is learning to think.
March 15, 2004 12:03 AM
I tend to think that learning law without theory is like memorizing multiplication tables without grasping the conceptual heart of it. There is absolutely no way to make any sense of--let alone memorize--the gnarlier points in Federal Courts, without the ability to tell apart two theories of adjudication often in play, but not explicity: the "dispute resolution," and the "public rights" models. Disclosure: I was a philosophy student--bring on the theory.
I am a practicing lawyer who teaches a skills course at my local law school-- which I have always thought of as being more theoretical in its approach than not. Indeed, the fact that practitioners like me are invited to teach courses like "Discovery" has always seemed to me to be a way of compensating for the school's overall emphasis on the theoretical.
Some balance between the two is important, I believe. "Thinking like a lawyer" is not a mechanistic analytical approach-- it is a creative process that flows from a grounding in the various disciplines that constitute the science of jurisprudence.
For a long time I believed that the skills associated with practicing law were not something that could be taught -- I thought that one must first acquire the theoretical background in an area, and then acquire the skills necessary to implement the application of the law through trial and error. At some point I realized that this belief was a mistaken one, and I now think that the reason skills-- like writing, in particular-- are not taught is because the process of teaching these skills is so very time and labor extensive.
The students in my Discovery class are upper classmen who are pretty good at issue spotting, and pretty good at explaining what issues they believe should be developed. I am there to help them figure out how to ask the questions that will allow them to make out a case, or rebut an argument, or illuminate an issue. Both the skills they come with-- issue spotting and analysis-- and the skills I am teaching-- articulation and inquiry-- are part of "thinking like a lawyer". Legal education often overlooks the second set of skills.
It was hard for me to figure out what a class like torts or contracts was teaching me. For the most part it felt fairly lawyer-focused, even if we were learning abstract concepts along with the doctrine. But then I took evidence, and found out how fact-based real law practice is. In trial advocacy, by far the hardest thing for me has been direct examination, which requires laying foundation and getting out all the relevant facts without using any leading questions. I can only imagine the skill required to conduct effective discovery in a civil case. Applying the facts to the law is certainly an art form that students must seek out; it is not handed them in law school.
I actually think that law schools often do their students a diservice by not providing them with more theoretical background. The problem is that legal educators sometimes -- and legal practioners almost universally -- take it as an ideal that law schools ought to turn out lawyers. I think that this is a mistake.
In the bad old days before the Royale Chair in Law at Harvard got legal education in America into the universities, people learned the law in a law office. It was an apprenticeship process. The medical profession still heavily relies on formalized apprenticeships, as does the legal profession (at least for barristers) in the UK. Yet for some reason, everyone thinks that American law schools should turn out fully functioning lawyers.
The firms know, of course, that this is not the case. They realize that someone with a law degree from Yale is more or less worthless as an attorney and is going to have to be taught a lot. My argument is that this is actually a good thing. It is all about comparative advantage.
Legal practioners have a vast comparative advantage over law schools in teaching practical lawyering skills. Example, I had a semester of trial advocacy and a semester of legal writing in law school. I learned more about brief writing in the first three weeks of my clerkship than I did in all of law school. It is simply very very difficult to explain in a classroom what makes for a good brief and what does not.
On the otherhand, law schools have a huge comparative advantage over practice in teaching theory. The problem is that most law schools teach it in a really ad hoc and disorganized way. However, I think that lawyers who understand that various sorts of frameworks that can lie beneath doctrinal structures are likely to be better lawyers.
In short, I think that most clinical education is a boondogle. Students would be better served getting theory while they can, and then be prepared for a steap learning curve and some kind of de facto apprenticeship after graduation.
if "Learning to think like a lawyer is learning to think"...then I think you had better prepare an antitrust suit against the philosophy departments of the world...cuz they like to think they are the first science and have a lock on that...um...learning to think deal.
I vote for doctrine, but only if you get rid of the 3rd year of law school which is a complete waste of time. (the universities won't let you, it is a huge profit center for them.)
I have supervised many associates in 30 years as a lawyer, and been one myself. I can tell you that what I have wanted from them is the ability to identify relevant legal and factual material and to summarize them in plain english.
I fully agree that they are not lawyers and they do not think like lawyers when they graduate from law school. It takes about 8 to 10 years to turn them into real lawyers. But they need to have mastery of the doctrine to be able to understand the grammar of the law and to be able to do the work that they will be doing for the rest of their careers, and to communicate with other lawyers and judges.
The theories of law professors are of no value in the practice of law (I stopped reading law journals years ago; every once in a while I pick one up in order to remember why I quit) and the theories of associates are even less valuable. I used to threaten associates with bodily harm if they put theories in a memo. Sometimes, I told them just to copy the cases and use highlighter on the relevant passages.
Lyle: Academic philosphy departments are object lessons in Plains Indian Wisdom: If you are riding a horse and it dies, get off and find another horse. It is a waste of time to beat a dead horse, you can not ride it anywhere.