“Doing What We Do Best” or “Why Law Professors Should Feel Less Guilt”
Deven invited me to participate in the Mobblog over at Madisonian about the nature of law schools. Here is my curmudgeonly (can you be a curmudgeon when you are 32?) first contribution to the debate:
Law schools, we are told, are failing to properly train lawyers for the profession. Most of the criticism comes from those who insist that legal education is too impractical, focusing on abstract questions with little relevance to legal practice and failing to provide the concrete skills in interviewing, drafting, etc. that are an attorney’s bread and butter. What happens in law schools, the critics insist, bears little resemblance to what happens in legal practice.
Before law professors join too enthusiastically in the self-flagellation, however, I think that we would do well to question the assumption that what happens in law schools ought to closely mirror in some sense what happens in legal practice. Rather, I think that law schools ought to devote their attention to those areas of legal education where they have a comparative advantage. What do law schools do well? The answer is that we do “theory” well. We do not, however, do “practice” nearly as well as . . . well . . . practitioners. Accordingly, I think that law schools should focus unabashedly on “theory.”
The scare quotes in the last three sentences are deliberate. When I say “theory,” I don’t necessarily mean philosophy or critical theory or deep meditations on the methodology of law and economics. Rather, I want the term to mean something like abstract, reflective, or big-picture approaches. Hence, theory does include subjects like philosophy or economics, but it also includes understanding doctrinal subtleties or careful analysis of the moves made in one of Cardozo’s pocket-picking opinions. Much of what I am thinking of as “theory” would fall into the academically much maligned category of “doctrinal thought.”
I think that law schools ought to focus on “theory” for three reasons. First, at some deep subterranean level I think that it is useful in practice. Lawyers who are intellectually excited by and engaged with the law are more successful than those who flopped into the profession by default and seek the minimal legal understanding necessary to perform their work today. They are also happier. Second, I think that “theory” in this broad sense is an area where law professors have a real advantage over legal practitioners. Finally, if students don’t get a broad exposure to theoretical perspectives on the law in law school, it is unlikely that they will get them in practice.
Inherent in this vision of the law school, however, is the reality that law schools are one player in legal education, rather than the player. Many of the law-schools-are-failing-to-train lawyers complaints essentially boil down to the assumption that upon graduation with a JD our students should be ready to hang out their shingle and begin the practice of law. I see no reason, however, why this should be taken as the standard against which to measure legal education. Law was learned through apprenticeship long before there were law schools. There are great benefits to apprenticeship. I learned much more about writing appellate briefs from clerking for a judge or going over drafts with a senior partner than I ever learned in law school. Law firms, however, wish — as much as possible — to push the task of training attorneys entirely onto the shoulders of the law schools. Yet there are many areas where practitioners enjoy a massive comparative advantage over law schools.
What about the law student who graduates and goes into solo practice you ask? My answer is that she shouldn’t. Indeed, if we are serious about increasing the quality of legal education, then I suspect that ultimately we are going to have to restructure the legal profession itself. English barristers, for example, are required to go through a period of formal “pupilage” before they are allowed to practice for themselves.
To be sure, there is much about law schools that could be improved. Still, at the end of the day, I think that the profession needs to recognize that the training of young lawyers is not something that they do because the law schools “fail.” Rather, legal education is something for which law schools and senior lawyers are jointly responsible. If that means changing the process of admission to the profession or even the nature of employment contracts for young lawyers (who perhaps should look more apprentices and less like at-will employees) so be it.
crossposted at Madisonian.net