“The first thing we do, let’s [train] all the lawyers.”
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.