Thanks to Deven Desai for pulling together an exciting group of mobbloggers for this very timely and provocative topic.
I want to expand and focus the topic a bit, all in one fell swoop.
Here’s the expansion: As I think about what law schools should be, I inevitably think about what the legal profession should be. Law schools are and should be training students for . . . what exactly? Most of our graduates will practice law, at least initially, but some will not. Many who start off in law practice will migrate within a few years to other things. Law school graduates often have several careers, many of which are law-related but which don’t involve representing clients. As a partner in one of my former law firms used to say, law is a service business. We can take that phrase and run with it in many directions. Which ones should law schools pursue?
Here’s the focus: Much of the talk about experiential learning and practice-based teaching in law schools is grounded in the MacCrate Report, with a nudge from the recent Carnegie Foundation study. As I read these, they take as premise the proposition not merely that law schools should change how they teach because practice-based teaching is more effective, but that law schools need to fill a training gap created by the growing unwillingness of many law firms to train new lawyers themselves.
Why should that latter proposition be the case? It is reasonable to argue that clients should not be forced to bear the cost of training new lawyers. But why should the profession not expect law firm partners to shoulder that cost — rather than passing some or all of it back to law schools? As law schools decide what stays and what goes in the revision of legal education, why shouldn’t they say: We’ll build in experiential learning — so long as our alumni and the rest of the profession saddle up and invest some of their own cash in the same thing?
I’m not naive; I practiced law in law firms for close to ten years; I know the pragmatics of the answer to that question. But I think that it’s important to have that issue on the table.