Maybe It’s Not Broken: Law Schools, Critical Thinking, and Carnegie

Deven Desai

Deven Desai is an associate professor of law and ethics at the Scheller College of Business, Georgia Institute of Technology. He was also the first, and to date, only Academic Research Counsel at Google, Inc., and a Visiting Fellow at Princeton University’s Center for Information Technology Policy. He is a graduate of U.C. Berkeley and the Yale Law School. Professor Desai’s scholarship examines how business interests, new technology, and economic theories shape privacy and intellectual property law and where those arguments explain productivity or where they fail to capture society’s interest in the free flow of information and development. His work has appeared in leading law reviews and journals including the Georgetown Law Journal, Minnesota Law Review, Notre Dame Law Review, Wisconsin Law Review, and U.C. Davis Law Review.

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7 Responses

  1. A.J. Sutter says:

    I don’t disagree with your general point. But a couple of nuances:

    (1) Apropos of the McKinstry quote: I don’t think law schools teach problem-solving, but rather problem-spotting. It’s quite difficult for lawyers to be good as problem-solvers until they’ve had some experience using their skills in the real world. (Coming up with a great argument in a brief is not ‘problem-solving,’ in this view.)

    (2) “Theory” has certain connotations (at least to those d’un certain âge), especially of a literary or political kind. My hunch is that in law schools it actually means economics, especially of the Chicago kind. What exactly do you mean by this term? Both of these varieties of “theory” are pretty recent additions to the legal academy. Were lawyers trained before the 1980s, including most of the judiciary whose opinions are the backbone of the curriculum, deficient in their “critical thinking skills”? Maybe you think “legal philosophy” or “jurisprudence” too unidisciplinary. But why “theory” and not, say, “philosophy”?

  2. Larry Rosenthal says:

    Lawyers are indeed problem solvers. Interestingly, however, traditional pedagogy abjures the problem method of teaching typically used in business schools in favor of the case method. How, I wonder, can we expect students skilled at dissecting appellate opinions to learn the skill of problem solving? Or, as I put it to my students when I explain my use of the problem method: In my years in practice, I never had a client come into my office, hand me an appellate opinion, ask me to explain the holding, the reasoning, potential flaws in the reasoning, and speculate on how the holding might be applied in a variety of hypothetical situations that could arise in the future, and offer to pay me handsomely for receiving such an analysis.

    Larry Rosenthal
    Chapman University School of Law

  3. A.J. Sutter says:

    Larry, I’m not sure it’s good for law students to learn how to problem-solve before they get some foundation in the substantive law. (Which isn’t to defend the case method — nor the litigation bias of law pedagogy, either.) Mentors for junior lawyers are an important part of the profession’s ecosystem. Do you think law school should try to replace them?

    I realize that the current economic pressures in some firms may mean that senior lawyers are less likely to act as mentors for their juniors than in past eras, but that may say more about the messed-up state of the profession today than about the need for mentoring.

  4. Larry Rosenthal says:

    Law professors have a seemingly endless set of rationalizations for teaching in the way that is most consistent with their academic interests rather than to prepare their students for practice, and A.J. Sutter’s claim is among them. The strange thing is that on final examinations, law professors almost always expect students to engage in problem solving, yet somehow they think that the very skill tested on the final should not be taught during the class.

    I use the problem method in all my substantive law classes, including 1L Criminal Law. I do not experience the problems that A.J. Sutter fears.

    As for economic pressures, it is true that firms are increasingly less willing to let law schools externalize training costs to them. But, for the public interests and government bar, which face enormous resources limitations for the foreseeabe future, the current situation is a disaster.

    Larry Rosenthal
    Chapman University School of Law

  5. A.J. Sutter says:

    I’m not sure whether I should be abashed, or else proud, at having independently discovered a professorial rationalization. I’m speaking from the perspective of 25 years of transactional law practice at large firms, in-house (semiconductors & electronics industries), as well as solo. The kinds of problems I’ve had to solve professionally usually have had to do with personalities and business needs/circumstances of clients and counterparties. And notwithstanding any use of a problem-solving approach in MBA training, often as not those problems were created, rather than solved by, MBAs. Law schools in theory might be able to alert students to the existence of such problems, at least when the faculty have had sufficient real practice experience. But as for learning how to solve them, that’s something you can do only when playing for money, not playing for chips. I grant litigation might be different.

  6. John Steele says:

    “Maybe it’s not broken.”

    Would law professors, law students, and legal employers all agree on that? If not, whose answers matter and why?

  7. Matthew Reid Krell says:

    Well, here’s my concern: American law schools don’t seem to prepare students to take the lead in solving a client’s problem (or, equally as problematic from the student’s perspective, they’re perceived to fail in that area). Since the experienced lawyer has to do the creative work anyway, goes the thought process, why pay a new lawyer the salaries new lawyers command to learn how to do that? You can, instead, pay a lawyer in India to do the routine work that the new lawyer would otherwise do, and pay the Indian lawyer significantly less.

    The problem isn’t that law school does a bad job of preparing students to practice law; it’s that they do a bad job of preparing students to compete globally with the skill set they have upon graduation. We either have to improve a student’s skill set, so that they can compete on quality out of the gate, or we have to improve their economic condition, so that they can compete on price out of the gate.