Is Interdisciplinary Legal Study a Luxury?

book-old1.jpgOver at Balkinization, Professor Brian Tamanaha (St. John’s School of Law) argues that most law schools should abandon their vigorous pursuit of interdisciplinary studies in law:

[P]erhaps detailed knowledge of the social sciences—anything beyond rudimentary information every educated person should possess—is irrelevant to the practice of law.

It seems evident that one can be an excellent lawyer without knowing any of this interdisciplinary stuff, while it is not obvious that learning this will make a person a better lawyer. A stronger case can be made that this information might improve the performance of judges, but a more efficient way to deliver this benefit is to set up classes (in economics, statistics, etc.) for sitting judges—programs which now exist.

Brian contends that non-elite schools should reconsider whether they should emulate top-ranked law schools in focusing heavily on the interdisciplinary study of law:

In the non-elite law school universe–with schools almost entirely dependent upon tuition, with a majority of graduates who do not get corporate law jobs and only rarely become law professors–the interdisciplinary movement cannot be so easily justified.

Let me just give three reasons why it might be a bad idea for non-elite law schools. First and foremost, as argued above, there is no evidence that it will make their students better lawyers. Second, it costs a lot of money to go interdisciplinary, and (because non-elite schools are tuition driven) this money will come out of the pockets of the students. Third, their education might suffer if their faculties emulate the elite law school trend toward hiring JD/PhDs with little or no practice experience (assuming a person with some experience in the practice of law has a bit more insight to impart to students about how to be good lawyers). . . .

The bottom line of this post: the notion that interdisciplinary studies within law schools promises to improve the practice of law is an old idea backed up by little evidence. Non-elite law schools might not be serving their students well if they get caught up in this trend.

I strongly disagree. Brian’s post seems to be informed by a common set of assumptions about legal education and practice that I think are false. These assumptions involve a particular vision of what tools are necessary for law practice and of what good lawyering is all about, as well as a vision of what role legal education should play in preparing students for the practice of law.

With regard to the vision of law practice, I think that it is a common assumption that it involves learning doctrines, rules, case holdings, drafting skills, etc. While this is part of law practice, the practice of law is tremendously varied. Some students go on to become judges and policymakers. Many will work for government, for think tanks, for public interest organizations. Many might work in house at companies, where they might also be making policy. For example, one of the most rapidly growing positions is that of privacy officer — most companies have numerous people devoted to understanding privacy law and making corporate policy with regard to privacy. In any policymaking position, knowledge of existing legal doctrine is just one part of the job. One also needs to be able to see the big picture, to make wise policy choices beyond merely complying with existing law.

Moreover, the practice of law involves many dimensions. Some students will become trial lawyers, and interdisciplinary knowledge might enhance their ability to make eloquent arguments before the jury. Literature, psychology, rhetoric, and other fields are very important for a successful career as a trial lawyer. One of the difficulties in justifying interdisciplinary legal studies is that often the materials read or studied don’t have a direct bearing on practice. So if one reads Melville or Shakespeare, or reads works of behavioral economics, psychology, or sociology, the benefit isn’t in terms of having authorities that one can cite in a brief or recite before a jury. But the exposure to these ideas, the process of reading and thinking about these works enhances one’s general store of knowledge, one’s understanding of life, and so on. This indirectly enhances one’s ability to practice law. The brilliant funeral speech of Marc Antony in Shakespeare’s Julius Ceasar is a wonderful display of rhetoric, and much can be learned from comparing it with Brutus’s speech. Behavioral economics, psychology, and cognitive science — the work of Daniel Kahneman and Amos Tversky, for example — reveals how the framing of choices can have dramatic effects on what people will choose.

Brain notes that “no convincing evidence has been provided to demonstrate that ‘interdisciplinary studies’ will help one whit in the training or performance of lawyers.” But is there a way to produce the evidence he desires? Is there a way to prove that learning history, literature, philosophy, psychology, economics, and other humanities have any value for most careers? What would be the metric by which this could be measured?

Certainly knowledge of rules and doctrine is important for law practice. But in many cases, the doctrine is unclear or is subject to interpretation and debate. It is the ability to make persuasive arguments about the doctrine that separates the great lawyers from the mundane. A good legal argument often touches upon policy implications; it examines the downstream consequences of rules, slippery slope problems, etc. A good lawyer might realize that there is a body of sociological, empirical, or psychological knowledge that supports a particular interpretation of the law. More indirectly, a lawyer steeped in a broad humanistic understanding of the law might think more creatively and might see issues and arguments that others without such an understanding would not.

Moreover, the study of interdisciplinary knowledge can have a broader indirect effect on the law. For example, the legal realists had a tremendous influence on legal practice. They changed the way many people thought about the law. They didn’t do so directly. So lawyers and judges might not have been readily citing Karl Llewellyn or others as authorities for various legal propositions, but their thought did influence the way that legal arguments are made, the way that lawyers and judges understand the task of applying and interpreting the law. Although the law still struggles to integrate interdisciplinary knowledge in practice, I don’t think that the project begun by the legal realists is a failure.

So I think that it is a deeply flawed assumption to see the practice of law as the mere mundane application of rules and doctrines. For the creative lawyer, steeped in literature and humanities, in social science, with an understanding of policy and a larger world view, the range of options in a case is much broader, the tools to work a case are much more numerous and vibrant. The lawyer with interdisciplinary training can often see more — see issues and arguments that the more narrowly-focused doctrinalist won’t see. I’ve read many a complaint and brief that could have benefited from more thoughtful framing, a more creative approach, and a knowledge of the humanities. I’ve seen cases where attorneys seemed to be very limited in their vision, where they they merely proffered mundane readings of rules, where they took too much as given and didn’t push for more. And on the flip side, I’ve seen many cases where a visionary attorney has won with a new argument, a clever interpretation, a wise marshaling of facts and evidence, a novel reading of cases or application of law. Many lawyers act like mechanics, but the great ones, in my opinion, have a wisdom, judgment, and creativity that enriches everything they do.

What role should law schools play in the training of lawyers? A common assumption is that preparing people for the practice of law should involve teaching them the practicalities of practice. So teach them the rules, train them in the nitty-gritty of how to litigate, make deals, etc. While this is important, I think it is a limited vision of what it means to prepare people for the practice of law. At the end of the day, nothing can truly prepare you for the practice of law except actually doing it. There’s a certain wisdom that comes from experience that seasoned practitioners have and that I don’t think can readily be taught in school. The best way to learn how to practice law is to do it. Clinical education and learning certain practice skills can help, but most lawyers will learn about the practice of law as they are practicing it.

So if lawyers learn some of the most important lessons about practice after they graduate from law school, then what’s the purpose of law school? I believe it should be to provide students with a rich body of knowledge that they can draw upon to sharpen their thinking, open their minds to new ideas, get them to see the larger picture, help them figure out what they love about the law so they can launch their careers in the right direction, etc. These things are often difficult when one is in practice, with a desk full of heaps of paper and with the phone ringing off the hook. There often isn’t the luxury of sitting back and thinking more broadly about the law. There isn’t as much time to enrich one’s mind with a study of the humanities and the ways they intersect the law, for example. Law school helps get one started on this endeavor. It teaches students that there are many different ways to think, it infuses them with ideas that they might not ordinarily think about unless they have time to step back from it all and ponder. The effects on their abilities as a lawyer are often indirect; they are hard to articulate and to pin down. We shouldn’t demand that lawyers point to the work of Ludwig Wittgenstein, John Dewey, HLA Hart, Karl Llewellyn, Daniel Kahneman, Fyodor Dostoyevsky, or Franz Kafka and say: “I won this case because of reading this particular thinker.” But are they better lawyers for having read and reflected upon great works in the humanities, for having some background in a variety of different fields of study and their applicability to law? I’d venture to say yes.

Is the value of law school for a lawyer to be working a case and be able to remember some rule she learned in a class many years ago? I think not. To find the rules, lawyers only need to crack open the law books or hop on Westlaw or Lexis. The rules, in other words, are not what training to be a lawyer is all about. The practice of law can contain a lot of drudgery, and a significant part of it is perspiration. But it is also part inspiration, and it is also an art.

All this said, I still believe that law school should teach students rules and skills. But learning rules is not what will help students become top lawyers. Learning skills in law school can be helpful, but at the end of the day, learning skills is something that lawyers learn when in practice. Skills develop over time. What law school does is plant some seeds — it lays a foundation. It is foolish, in my mind, to think that law school can spit out lawyers who are ready to go out of the gate. Law school builds the foundation. The rest of one’s legal career is when the building gets built.

So in contrast to Brian, I encourage the development of interdisciplinary studies in law. I don’t see why they only need to be a luxury for the elite schools. I see interdisciplinary studies as helpful to all lawyers, and as an important part of any good legal education.

Brian Leiter is also collecting comments.

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14 Responses

  1. Bruce Boyden says:

    I somewhat disagree. This whole discussion should be about tradeoffs. Sure, it’s conceivable that knowledge of some other subject matter may be relevant to a particular practice. But I think the importance of such knowledge is dwarfed by the importance of the type of legal knowledge you can only get (or begin getting) in law school: how to read a case or a statute, how to criticize one, how to make an argument persuasive to other lawyers, how to write a brief or a memo, how to draft a contract, how to make sense of conflicting or gap-ridden statements of rules and state what the law “is,” or rather what it will be tomorrow, or to this judge in this case. I spend at least 90% of my time in all of my classes teaching that sort of stuff.

    There are some areas of the law where some knowledge gleaned from another discipline would be helpful. Economics is helpful in Patents and Antitrust and Contracts. Statistics is useful in Employment Discrimination. History might be helpful in Constitutional Law. Philosophy — particularly logic — is useful in Statutory Interpretation. But it’s at best icing on the cake, compared to the things I listed above.

    None of this directly indicates who a law school should *hire*. Even if classes are mostly non-interdisciplinary, schools may want to hire professors who *write* such stuff, because that’s where the prestige is right now, and increased prestige benefits the school and the students in the long run. But that’s another trade-off. Interdisciplinary professors likely spend less time in practice learning the skills I noted above, and are (ceteris paribus) less likely to know how to teach those skills themselves. So the increased prestige may come at a price, namely, that students will learn less of the stuff that directly pays off in practice.

  2. l. K. Richard says:

    An important vantage point to consider, as well, is what the potential lawyers want to learn. Sure, in degrees this argument can be narrowed to a discussion of trade-offs, it can also be said that every lawyer should have a greater interdisciplinary knowledge to wisely weigh policy decisions. However, lawyers in general should be learning any extra-disciplines outside of a school’s track program.

    After a certain point (namely, once a person has completed general education degree qualifications) a person has the option to put a great deal of time and effort into law school, arguably with the preeminent interest of becoming a professional–but how many jobs are out there for professional generalists? Not many; arguably the most useful place society has for more than a handful of generalists, is as informed consumers and citizens. The price put on that valuable occupation is one which should be gladly shouldered by the public, rather than as an individual person’s tuition payments, and treated as an investment in the public interest.

    What this debate needs to focus on is the fact that a group of 50 lawyers does not necessarily correlate to 50 environmentalist trial lawyers; there are subdivisions upon subdivisions of law and each has its own likely internal standard for interdisciplinary education/knowledge. That is what determines the differences between a circuit judge and an antitrust scribe.

  3. Stuart Buck says:

    But are they better lawyers for having read and reflected upon great works in the humanities, for having some background in a variety of different fields of study and their applicability to law? I’d venture to say yes.

    Isn’t that what undergraduate degrees are for? What reason is there to think that law schools — as professional training schools — are going to have any comparative advantage in teaching law students about the “humanities” rather than about law?

  4. Stuart Buck says:

    But are they better lawyers for having read and reflected upon great works in the humanities, for having some background in a variety of different fields of study and their applicability to law? I’d venture to say yes.

    Isn’t that what undergraduate degrees are for? What reason is there to think that law schools — as professional training schools — are going to have any comparative advantage in teaching law students about the “humanities” rather than about law?

  5. A.J. Sutter says:

    I strongly agree about the importance of interdisciplinarity both to law practice and life, but I disagree that this should come from law school. I don’t think the “that’s what undergraduate degrees are for” idea is adequate, either.

    I’ve been practicing corporate/M&A and IP transactions for 25 years at big law firms, solo, and in-house. Nothing in my legal career after law school has been benefited by, say, law and economics, critical legal studies, law and literature studies, or their ilk. (Admittedly, CLE did benefit my law school career: thanks to mimicking the paradoxical style of Roberto Unger’s 1983 Harvard L. Rev. article, I could BS my way to an A in my useless “law and sociology” course. I discovered Unger’s article when it came out a few days before the exam; I knew that the august and elderly prof was too stuck in his ways to have read it himself.)

    Pace Bruce Boyden and perhaps others on this blog, textbook economics is utterly useless for most real-life patent practice. During the last 15 years or so I’ve been focusing on patent-related transactions quite intensively, including in-house (not counting a brief mid-career spell of part-time prosecution). What does help is knowing some basic principles of psychology, rhetoric and business management, to say nothing of knowing about engineers’ culture. I expect BB is thinking about the use of econ-based arguments in patent litigation. Neoclassical economics – demand curves, equilibrium and such – rests on extremely shaky foundations, which I have never seen examined critically in L&E; whether such pseudo-science belongs in court arguments can be contested. But aside from that, only a few patents are litigated, while applications have to be drafted and prepared for *all* of them – and usually by different lawyers from the litigators, for conflict reasons. L&E doesn’t offer anything of relevant about that; the practical issues are almost always industry- and competitor-specific.

    Kahneman and Tversky might be useful for many lawyers to study while young, but most of what they say won’t be news (for practical purposes) if you’ve had some experience dealing with people. E.g., right after college I worked in a small New England bookstore that had been unionized; our union rep came out of a meeting with the owners, saying, “Jeez, they’re throwing around nickels like they was sewer covers in there.” Behavioral econ in a nutshell.

    Aside from being open to and interested in people, so far these have been the most useful interdisciplinary topics for my law practice: (a) reading knowledge of Italian, German and (once upon a time) Latin and Greek; (b) various topics in math, such as Lie groups and metric spaces; and (c) physics and biochemistry. Categories (a) and (c) helped me to get various jobs and attract interesting clients, while (b) helps me to keep my mind crisp, and also figured by chance in a career-changing event. None of these are taught in law school, and probably few people would have exactly the same list. It’s a totally individual assortment of stuff, as it should be.

    It’s good for law students to hear their profs mention Shakespeare or Kafka or Buber or the SU(2) symmetry group, or whatever, but that doesn’t mean it’s beneficial to study how to *apply* those other fields to law. (In fact, that strikes me as a very stultifying approach to those disciplines.) Rather than contriving law-and-humanities or law-and-econ courses, better to set an example by showing students the importance of continuing to read widely during professional school and especially after they graduate. The greatest benefits will follow if students and lawyers maintain their natural interests throughout their careers. At a minimum, they’ll have interesting and stimulating recreation, and won’t be as burned-out; and in the best cases, they’ll be able to combine their work with something they enjoy.

  6. A.J. Sutter says:

    PS: please forgive my Freudian slip, I have a state bar compliance deadline looming: rather than “CLE” I meant, of course, “CLS”.

  7. John says:

    The idea that interdisciplinary knowledge is necessary to a law school education also seems to further embed the notion that only top-5 law school graduates are appropriate for professorial positions. If, as seems to be the case, interdisciplinary studies are focused on far more by top-tier law schools than by lower-ranked schools, then one can surmise that most law school graduates (and professorial prospects) who have interdisciplinary experience will have graduated from these “elite” institutions. And as the idea that “lower-tier” law schools should be teaching this sort of stuff becomes more embedded (as some posters here would have it), than only individuals with interdisciplinary qualifications will be qualified to teach at these schools.

    While I’m sure I will get a ton of heat for this, this seems like a convenient way to perpetuate the death-grip the elite law schools have on the law school professoriate. As it becomes increasingly clear to practitioners (of which I am one) that law school rank or prestige has little to do with ability as a practicing lawyer (in most cases), it should, in my opinion, become increasingly clear that the same probably holds true for law teaching. But this would be bad for keeping the hold these schools currently have on the professoriate. It just seems a little too cozy for me – 1) elite law schools teach interdisciplinary studies; 2) lower ranked law schools should as well, 3) only those who went to elite law schools have the credentials for teaching those classes, so 4) only teaching candidates who went to elite law schools are qualified to teach at lower ranked law schools.

  8. George says:

    “At the end of the day, nothing can truly prepare you for the practice of law except actually doing it. There’s a certain wisdom that comes from experience that seasoned practitioners have and that I don’t think can readily be taught in school.”

    If that’s the case, and the above statement is true, what do I need you professors for?

    I am a law student, in my last semester. I have spent four years and around $140K for a “legal education” that in large part, according to you, I can’t do anything with and has prepared me for…nothing. I thank you for your honesty, I have always felt that what I was learning, if anything, had pitiful little to do with what attorney’s did out in the real world.

    It reinforces a previous post here about law school’s only real purpose being the sorting of students with the top 25% receiving the lion’s share of employment opportunities driven through law review, OCI and the like, while the rest are cut lose to survive on their own.

    Professor’s, given the above is true, that whatever “it” is I am supposed to learn from you can’t “readily be taught in school”, I wonder, do you ever feel any guilt when you cash that paycheck at the end of the day?

  9. Bruce Boyden says:

    George, I think the weasel word in the sentences you quote is “truly.” Dan said that one is not “truly” prepared for practice until after you’ve done it for a while. I would agree that there are certain things that are at least very difficult to learn from reading cases. In fact, that’s why I’m having my civil procedure class actually go about the initial stages of litigating a hypothetical case. Law school could certainly include more practical exercises of that sort. But I’m not sure when if ever one is “truly” prepared for practice. I’m not sure I was “truly” prepared for it, even after doing it for 8 years.

    So whether Dan’s argument means that law school is useless without practical exercises depends on how much weight he puts on the word “truly.” Dan, is that what you meant? Someone could skip law school and study liberal arts for 3 years and be just as well prepared for practice? I doubt that’s what Dan means, exactly, but he does seem to be saying that learning doctrine and such is relatively unimportant. Again, to the extent that’s the argument in the post, I disagree.

  10. Bruce,

    Of course, law schools can help get students ready for practice, and what they do certainly helps students in practice. But a lot of practice skills depend upon experience doing them. I don’t think law school can replace learning on the job — just like learning in medical school can’t replace the learning that occurs during residency and beyond.

    I do think that learning doctrine isn’t that important. For example, in my criminal law class, the specific rules I teach are less important than understanding the basic concepts and being able to interpret and apply statutes. So I tell students that wherever they practice, they’ll be dealing with a specific criminal code, and that might be different from what they study in the class. That they remember the elements to a particular crime is less important to me than their ability to understand any criminal statute they might encounter and to be able to work with it. So on the exam, I typically give them statutes they have never seen before involving crimes they haven’t encountered before. The way I aim to prepare them is for them to be able to understand and interpret these statutes. And judging from the exams, they are able to do this.

    So I tell students that in 5-10 years, I could care less whether they remember the elements of murder, or whether they could recite the elements of burglary, and so on. What I care about is that they can read any statute and know the ways that they can interpret it, the ways they can apply it to the facts, the potential ambiguities and how to argue about them, etc.

  11. A.J. Sutter says:

    What about in fields that aren’t based only on statutory interpretation, or where interpretation and “doctrine” are intertwined? E.g. many tort and contract principles aren’t based in statute; if negiligence, res ipsa loquitur, reliance and quantum meruit aren’t “doctrine”, what would you call them? How about Constitutional law — sure it’s based on interpretation of a text (though the degree to which it is so is contested), but how do you separate out “doctrine” from interpretative technique in that context? In these fields, simply requiring students to remember analytical techniques without knowing about substantive principles (or the varieties of interpretative doctrine, in the case of Con law) won’t leave them adequately prepared.

    Not to say that analytic tools aren’t helpful. Once I started practice I felt that the most useful course I’d taken was comparative law. It allowed me to look at even US laws from a different angle from that of many of my colleagues, and was a good stimulus to imaginative solutions. Apropos of the original theme of this thread, in school I’d enjoyed it because it had many of the elements of a humanities class; it also helped that the prof, the late Rudolf Schlesinger, was brilliant. But in retrospect, it was very much about law per se, not “law and …”.

  12. A.J. Sutter says:

    To George: Lighten up, then pass the bar. Then you will find that law school has given you a credential, at minimum. Second, it will have given you a basic foundation of knowledge that you will need in order to practice, even if the texture of day-to-day practice is nothing like what you did in school. (I’m assuming you haven’t spent your time in school taking interdisciplinary courses; if you have, you might get your basic foundation from your bar review course, which you’ll need to have gone to law school to take ;-). So in either case, you’ll have some preparation as a result of law school.) When I went to law school there wasn’t any course that prepared one for transactional (non-litigation) practice, but the vocabulary and concepts still were handy. And if you decide to get involved in business instead of law practice, you’ll find that your law school background will have given you a helpful tool.

  13. J.S. Wright says:

    I am currently in my first year of law school and, as a student, I can honestly say that I would not want to attend a law school that did not value an interdisciplinary approach to the study of law. Law does not exist in a vacuum and neither do lawyers.

    I am fortunate enough to be attending a school that affords us 1Ls the opportunity to choose an elective in our second semester and I chose to take a legal history course rather than yet another “practical” course. Not only is the course itself interesting and informative, but it has made me view the material presented in my standard 1L classes in an entirely different light. Whether it will change what I do in practice after graduation….well, I would suppose not. However, it is making me think more about the context within which the law is formed and within which it functions.

    I know many people attend law school with the simple aim of becoming lawyers, but there are many of us who desire more. I, for example, see law school as not only a path to future employment, but also as an opportunity to continue my education.

  14. J.S. Wright says:

    I am currently in my first year of law school. As a student, I can honestly say that I would never want to attend a law school that does not value an interdisciplinary approach to law. The reality is that law does not exist independently of the rest of the world and neither do lawyers.

    I am fortunate enough to be at a school that allows 1Ls to take an elective in our first year. I chose to take a legal history course instead of another “practical” course (assuming the standard 1L curriculum can be described as such). This course has not only been informative and interesting but it has given me a different perspective on the material being presented in my other classes. I suppose it probably will not be determinative of my abilities as a future lawyer but I still think the experience is an invaluable one.

    Some people go to school simply to become lawyers, and that is fine. However, there are many of us that are looking for more. When I was looking at law schools, one of the things I considered was the type of courses offered. I did not want to attend a school that focused on law (and specifically the U.S. legal system) to the exclusion of all else. I was looking to supplement the standard courses we should all take with courses that would look at the role of law and legal institutions, how law interacts with society, and how the American legal system compares to other legal systems. I am not simply here to brief cases and outline (although I do spend most of my time doing that); I came to law school to learn about law more generally and to continue learning about the world.