A Hard Question (With a Chewy Chocolate-Flavored Center?)

The other day, one of my students wandered into my office with a sticky question. I took the liberty of putting his question to some of my colleagues. The depiction below sets forth the question and reasonably represents the conversations that ensued. I’ve changed the names to protect the innocent and the guilty. Professors Turtle and Owl represent a composite of several of my colleagues at my law school and beyond.

Student: Prof. Turtle, why do we spend so much time in law school discussing what arguments we could make and so little time discussing what arguments we should make as a matter of justice, ethical leadership, and sound decision-making?

Prof. Turtle: I’ve never even made it all the way through my syllabus in a semester. I don’t have time to address such issues. Ask Prof. Owl.

Student: Prof. Owl, why do we spend so much time in law school discussing what arguments we could make and so little time discussing what arguments we should make as a matter of justice, ethical leadership, and sound decision-making?

Prof. Owl: Let’s find out… What do you mean by justice? Whose idea of ethics counts? Do you mean to say that the students are just now noticing this? (accompanied by laughter). Wait a minute – why are you asking me? Are my students complaining? (accompanied by slight paranoia).

Why do we spend so much time in law school discussing what arguments we could make and so little time discussing what arguments we should make as a matter of justice, ethical leadership, and sound decision-making?

The world may never know.

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11 Responses

  1. Orin Kerr says:

    I think the reason is that our students become lawyers, not judges, and lawyers are advocates for their clients.

  2. dobe gulia says:

    Clarifying questions: what do you mean by making arguments “as a matter of justice, ethical leadership, and (especially) sound decision-making”? Decision-making by whom? Conducted for what purposes? Arguments made to whom? By whom? On behalf of whom? While being paid by whom?

  3. Chris says:

    Do we really focus on what-could-we-argue questions? My immediate follow-up once I’ve gotten an answer to a question like that is, “Is that argument any good?”

  4. Patrick S. O'Donnell says:

    Professor Monroe Freedman appears to be addressing questions of justice and ethical leadership (and, I’ll suppose, sound decision-making) with his students, as this post and thread attests from the Legal Ethics Forum: http://legalethicsforum.typepad.com/blog/2008/10/an-intriguing-a.html#comments

  5. A.J. Sutter says:

    I think Orin’s answer is correct, though it tells only part of the story. Legal education is framed mainly through the lens of litigation and appellate reasoning. Transactional lawyers do have many opportunities to make suggestions to clients about what might be a just, ethical or sound thing to do.

    Unfortunately, it’s easier to make litigation-based teaching materials than ones based on transactional or other proactive counseling. Nor do most law profs have practical experience on the transactional side, especially at a senior enough level (sr. associate, mid-level in-house, or beyond) where they could take initiative to make make such suggestions to clients in real-world situations. Though one would hope that as law clerks they wrestled with questions of justice, at least.

  6. 3L says:

    If Professor Kerr’s comment is a claim based on what most students end up choosing as a career, I think I understand it. But if Professor Kerr means to say that law school should self-consciously prepare students to be advocates, but not judges, law professors, executive branch officials, or legislators (or their staffs), then I am not sure I understand the reasoning, or I disagree. Each of those four functions surely requires much more of the type of judgment that Student asks about.

    In other words, many law students come to law school to seek legal careers that are not as lawyers, but in these other roles. Perhaps law school should train students for these careers just as well as the majority career of “lawyer on behalf of a client.”

  7. 1L says:

    I think part of the explanation is that it’s less natural for students to generate “could” than “should” arguments.

    Many of us come in with our own views on questions of policy, ethics, and morality. We may not have the best arguments, but we’re at least accustomed to thinking this way. Students have much more trouble, I think, not just sticking to the argument most convincing to us but also figuring out how to generate the full range of arguments we might make.

  8. Orin Kerr says:


    I think it’s helpful to distinguish 4 different things:

    1) What law students come to law school to seek, which I believe is your concern.

    2) What law students actually end up doing after graduation.

    3) What lawyers do over the course of their careers.

    4) How different methods of legal education impact both (2) and (3).

    Professors that focus on advocacy generally reason the answer to (2) is become attorneys, by an overwhelming percentage. On the other hand, (3) is very diverse and hard to predict, and (1) is really a byproduct of whatever ends up happening with (3) as seen through the lens of popular culture.

    So, when these professors consider the key question (4), they reason that the best way to train a law student for the course of his or her career is to focus on the advocacy that will certainly be helpful at stage (2), because anything taught in law school is very likely to be forgotten by stage (3) many years later, and in any event is very hard to predict.

    I should stress that I generally do not focus on advocacy in my on classes. I aim for my students to see all sides of an issue at once, which then lets them pick out a side to advocate if they so choose. But I do that because I think it makes for the best lawyers, and my point is that I see my job as training the best lawyers. And those who chose to focus on advocacy do so for the same reason — because law students graduate and become lawyers.

    Finally, in my experience there are many law school classes that are in fact specific training for these other roles, to the extent students are specifically interested in them. If you want to work on the Hill, take a class in legislation; to work for an agency, admin law; as a judge, a judicial internship; as a professor, a seminar class ,etc.

  9. Orin’s point is well-taken, but I admit to a failure of imagination in understanding how ethical concerns are not relevant to advocacy. Practicing lawyers presumably ought to be interested in the good life as much as judges, legislators, executive officials, etc. And the fact that law schools tend to consign questions of ethics to professional responsibility courses — which certainly address but in no conceivable sense exhaust the scope of ethics in a lawyer’s life, IMO — says much about the priorities in legal pedagogy.

    Of course, in the circles I move in — medical education — it is just as bad, if not worse. The larger issue, IMO, is why the question Susan posed could well be said about the vast majority of undergraduate and graduate education in the West. I’m biased, but it is no accident IMO that so many of the humanists were trained as lawyers, and at the same time they were committed to helping daily (lay) people cultivate virtue in their own practices.

    Needless to say, in my view, we almost could not be farther from their example.

  10. I’m baffled by the question, and I reject its premise. Professors Turtle and Owl must be teaching at some law school on another planet. The condensed version of legal argumentation enacted in class discussion and questioning is in some ways tailor-made for consideration of “justice, ethical leadership, and sound decision-making.”

    As a a pragmatic matter, students in law school are being trained in how to make convincing arguments. In order to understand which ones are convincing and which ones aren’t, they’re also being trained in how to articulate principles of justice, how to diagnose ethical and unethical behavior, and how to distinguish sound from unsound decisions. The could-should conjunction is everywhere.

  11. A.J. Sutter says:

    It’s interesting, but a little disappointing, to see that both students’ and profs’ comments are stuck in the groove of advocacy (with some tip of the hat to government and the academy). I guess I can’t say it too often: many practicing lawyers are involved in counseling clients. This is a very different role from advocacy. While this role is especially significant for non-litigators, it also, I hope, enters at times into litigation practice. Justice/ethics/decision-making are extremely relevant to counseling. Judging by these responses, that skill is no more emphasized in law schools today than it was when I was a student.