Legal Education: Vision and Values

[Continuing my series on new directions for legal education. The first three posts are:

This series of posts on the future of legal education has proceeded back-to-front:  I described a vision, then refined that vision, then retreated a bit to argue that a vision should be grounded in values.  Properly done, a vision gets built; a vision doesn’t get announced.  But I haven’t put my own values stakes in the ground.  That process starts with this post.

When I think about the future of legal education — when I think about the future of higher education in general — I don’t start with premises about changing job markets or changing technologies or changing interests and talents of Generation Y.  I don’t start by looking at the impact of disruptive innovation on the legal profession.  I start with premises about who our present and future students are, who they want to be, and who they will be.  I also start with premises about who we are as educators, and who we want to be.  Why do we do what we do?  My initial post prioritized market realities out of a sense of necessity.  Here, I want to recapture at least some of what I deferred.  It will become obvious as I go on that what follows represents my own, perhaps idiosyncratic view of law and legal education.  None of this reflects what may be happening at my law school.  This is the world as I wish it to be.

Any vision of the future of law schools can’t succeed over the long run — can’t be effective and durable with respect to whatever aspirations its creators set for themselves — unless it is grounded in shared values.  Some people will disagree with that; to many, the point is a sound business plan.  But I’m going to stick to my guns.  Today’s American law school is essentially a Langdellian law school, with some clinical bells and whistles appended.  The Langdellian law school has endured not because it represents a sound business plan; the purposes and “business” conditions that grounded Langdell and Harvard’s then-president, Charles Eliot, have long since changed dramatically, many times over. Bringing law (and medicine) fully into a modern research university was the goal, and that ship sailed and landed long ago. But the values of the Langdellian model – idealizing law as an “objective” discipline that could be synthesized from experiments, known as cases, teaching a mode of analysis that would span all fields of legal practice – have endured.

Before putting pedagogical innovations into practice, then, it’s worth spending some time and space re-considering the Langdellian premise as it has come down to us over 100 years later, and the values that underlie it.  I don’t mean to re-hash critiques of Langdell and the case method; instead, I want to ask, briefly, why we (as law professors) do what we do.  What binds us together?  Here’s a cheap version of the standard account.   One chief purpose of law school today remains to teach future lawyers to “think like a lawyer.”  That’s not an empty phrase; Fred Schauer has a nice recent book that explores it in great detail.  Even its adherents among educators, however, recognize its limitations.  Two, therefore, “thinking like a lawyer” must be coupled, educationally speaking, with “doing the things that lawyers know how to do,” such as file and defend lawsuits and prepare estate plans and document transactions and so on.  A third and usually final purpose of law school is to ensure that future lawyers know that they should behave ethically and virtuously, both internally, with respect to the legal system itself (offering proper respect for adversaries and for courts, for example), and externally, with respect to society at large.  Somewhere in between purposes 2 and 3 there is often recognition that a key dimensions of “lawyering” — “competencies,” in contemporary jargon — involve other-directedness (putting others’ interests above one’s own), and judgment (the notion that legal counsel often involves more than rule-application and rule-following) and related things. We need to teach that, too.

If these themes are widely shared among both law teachers and members of the legal profession, and I think that they are, these are mostly purposes, not values.  I’m yawning.  I do these things in my teaching, or try to — most if not all law professors do — but I’m not inspired to come to work and to my classroom in the morning by the prospect of teaching another batch of law students to think like lawyers. And at its core, the point of a shared values discussion is, in my view, about inspiration.

I’ll shift the frame a bit.  Who are the people entering law study, who are the people entering the legal profession, and how should those of us who teach law think about what we do to shape those people?  Who are we, as the teachers?  How do we think about what we do, and who we are?

Here’s my theme, my word.  (I didn’t originate it; I simply want to claim it.)  Service.  Law — becoming and being a lawyer, being a member of the profession, being a law teacher — is about service.  As a young lawyer, I practiced in a small firm in San Francisco that supported a range of clients — small; large; elite and corporate; Mom-and-Pop businesses; individuals.  I struggled a bit, to be honest, with what I was supposed to do and with who I was supposed to be, and I occasionally struggled aloud.  A partner in the firm took me aside one day and quietly shared a piece of no-nonsense piece of wisdom that I’ve remembered ever since:  “It’s a service business.”  If that’s not you, then this — being a lawyer — isn’t for you.  The only questions are who you’re serving and how.

As law professors, we serve.  We teach our students to serve.  Better:  we are inspired to serve ourselves, and we inspire our students to serve.  We share a value:  service.  We pass that value on.  To me, that’s the core.  There are other values in play; I’ll get around to those in later posts, perhaps.  But this is where it starts; my idealized law school of the 21st century turns out to be novel in many ways but traditional, even backward-looking, in this one.

It may be the case that the re-framing matters only at the edges, in terms of an educational program, but the edges are where change begins to take hold.  And I think that the edges are extremely important, for the following reasons.

It has always seemed to me that the Langdellian model and its accompanying purposes took (and takes) entering students essentially for granted.  They are wet clay, in a manner of speaking, to be molded to suit the profession, but clay of a specific sort:  clay primed by pre-legal education to think and reason and react in essentially and mostly mature and adult ways.  College is thought of as the locus of the socialization and maturation process; legal education was and is meant to be essentially value-neutral with respect to students’ personal and social identities.  For decades, the view of the profession seemed to be that if students graduated full of legal reasoning skills but incomplete social and emotional powers, that was mostly all to the good; at least, it was not harmful.  Why?  Because the Cravath model, which married the Langdellian model in the early 20th century, assumed responsibility not merely for teaching new graduates to practice law but to complete their shaping as professionals and as people.  As recently as the late 1980s, and probably later, diluted versions of Langdell-plus-Cravath still dominated law firm and law office hiring across a great deal of the American legal profession.*

The Langdellian model is far from dead, but the Cravath model is gone, for all intents and purposes.  There are very few remaining law firms or practice settings of any other sort that are willing to underwrite the professional and personal development of its new hires to anywhere near the degree that they once were.  New lawyers are not expected to be “practice-ready” in every case, but they are expected to be “life ready”: responsible, capable, self-directed, independent when necessary and collaborative otherwise, and service-oriented.  For some time, law schools have been graduating new lawyers who are equipped formally for the intellectual rigors of law practice (that, at least, is what law faculties tell themselves), but who are at best incompletely equipped to mature into well-functioning professionals across these dimensions.

I’ll translate that diagnosis backward:  In my law school of the future, I’d ensure that the program did everything possible to produce graduates with “life capabilities,” so that their law-specific intellectual training resonated with a broader set of cognitive, psychological, and social skills permitting each person to have full access to (a) personal and professional success and (b) the kind of impact on society — access to justice, actual justice, improvement in the lives of those around us — that the legal system is meant to provide.  The modern “purposes” of a legal education (see above) should, in my view, be coupled with a deeper grounding in how our students can actually become the lawyers that society needs.

In one sense, all of this sounds like a load of vague and idealistic babbling; at most, all I’ve said is that law school should not be the “value neutral” place that the modern version of the Langdellian model, it seems to me, implicitly endorses.  To make it concrete for now, and in practice, I’d translate my prescription more or less as I’ve described in earlier posts in my series on legal education, by reducing the amount of time that law schools spend teaching propositional and analytical knowledge and by increasing the amount of time immersing students in social, business, organizational, and technological dynamics.  And by focusing students’ interest and attention on questions of personal capability, agency, and leadership.  Students do not come to law school understanding much of the “why?” or “how?” of who they are and who they might want to be as members of the legal profession.  (At least, few of the students I’ve met over the last 15 years, at four different law schools, have come to school with that understanding.  Maybe students of earlier generations once did; I can’t know.)  I would make helping students grapple with those questions a central part of legal education.

As I wrote above, much of this may come down to tweaking things at the edge, particularly to begin with.  In time, I’d hope that this view plays a more central role in legal education.  Either way, I contrast between my point of view with at least a couple of others that I’ve seen expressed recently in popular debates about what law schools should be or should do.

One alternative is a technocratic view of law and lawyers that seems to align legal education more or less explicitly both with the technologically-influenced disruption in the legal profession and with the techno-utopianism of the Silicon Valley.  The argument goes something like this: Legal problems  are design problems; the new shapes of the legal profession present new design challenges; new lawyers should be trained as designers.  The best-known proponents of this view are probably the leaders of the ReInvent Law project at Michigan State’s law school.  As I understand this view, as educators we should be taking cues from leading designers (think like Silicon Valley thinks) and from those who educate designers (teach like MIT thinks).  Out with the humanities; in with engineering.  Less visionary but no less ambitious law schools are likewise embracing law-and/as-technology; this is a notable statement by one law dean.  Its crudest payoff is this:  Law students need to understand the role of technology in society so that they can help techno-innovators make tons of money delivering legal services in new packages and, if all goes well, make tons of money themselves.

The great thing about this approach is that it’s terribly sexy and exciting.  It’s hip, and it’s modern.  Students seem to love it, so it meets the need to inspire them.  (Or at least some of them.)  Donors seem to be attracted to it.  Folks who see little but technologically-mediated disruption in the legal services industry are prone to think that it’s a logical next step. I tend to see a lot of disruption, too, so I’m sympathetic to this move.

Here’s my objection:  As important as it is for lawyers and law students to understand technology and its uses, misuses, and effects, law-as-engineering is a badly one-sided view not only of the social universe in general but more specifically of the legal universe.  If this is inspiration, then it’s inspiration of a strange sort.  Partly, of course, it doesn’t inspire a lot of people; partly, it inspires in some specifically problematic ways.  Silicon Valley ideology — that social problems are simply design problems — is not a panacea for the problems that the Valley itself aims to solve.  Here, I’ll align myself with the critiques offered by my Valley contemporary George Packer.  See this long New Yorker piece and this shorter blog comment.  In a nutshell, he sees the Valley being consumed by a conscious inattention to distributive values.  (In that vein, I sometimes consider the irony of the fact that Thorsten Veblen, author of The Theory of the Leisure Class, was a faculty member at Stanford and once lived in the neighborhood in Menlo Park where my family lived when I was born.)  Valley history aside, great engineering cannot exist, so far as I can tell, without humanity (let me re-phrase: without the humanities).   To build on an old joke, some of my favorite MIT designers are humanists.  And most of my reading about design has focused on people like Donald Norman and Henry Petroski, who are, in my estimation, as sensitive to humane aspects of technology as to its functionality.  Lawyers may read Foucault or disregard Foucault as they wish, but to put the matter bluntly, engineers need the arts as much as artists need science and technology.  Which is to say, each ignores the other at their, and society’s, peril.  Legal techno-centrism appears to suffer from precisely that ignorance.

I also contrast my view with a second alternative, which diagnoses the current ills of legal education with the diminished public stature of lawyers in society.  The argument runs more or less like this:  If what we want is a sense of purpose and hope for students coming into the profession today, then what we should offer is a re-constructed vision of the lawyer as “architect of a just society” (to borrow a phrase from one recent op-ed by a law school dean).  If we as legal educators can re-shape public perceptions of the legal profession, that is, if we build it — a place where students can become Daniel Kaffee, if not Atticus Finch — then both the educational system and society itself will recover.

This is a kind of “if you build it, they will come” inspiration; law needs to recapture its nostalgic self; law schools are Fields of Dreams.  I do like the nobility of this, because the imagery and mythology draws on so much that is great about lawyers and the law through history.

But is there any evidence that it works to inspire teachers and students of the new generation?  Or that it should?  I object to techno-centrism; I object, too, to an approach that reminds me of the old American Express line:  “Membership has its privileges.”  Like lawyers-as-engineers, as a metaphor lawyers-as-architects has its attractions and its place.  There is a way to re-cast it, I think, in terms of service, and in that sense it’s a great idea.  But I don’t want to rest a case on lawyers’ status, implicit in the idea that they don’t get the respect that they deserve because of all the amazing stuff that they do.  I resist the notion that lawyers occupy some special status as of right and that what ails the profession and its law schools can be cured by better marketing. To borrow a line that John Houseman used to conclude old Smith Barney commercials, lawyers aren’t entitled to that special status; they have to earn it.

The crucial gap that legal educators need to close is not a perception gap; what ails lawyers and law schools is not the messaging.  The gap is that as teachers we do a lousy job, in general, of helping our students become the people that they want to become as lawyers, and helping them see who they might become if they don’t have much of an idea themselves.  That’s the point of organizing education around the service theme.  The marketing is important, and it doesn’t take care of itself, but the work begins with substance, and with values.  It’s a service business.   New lawyers have to earn it — be inspired to earn it — and as law professors we need to ensure that making that happen is a central part of our identity and our purpose.  Our value set, as it were.  It’s not only the values that define the law and its institutions that guide this processes; our students’ values have to be present and accounted for, and our own, as educators, as well.

It’s certainly possible that many individual law professors do a wonderful job of this — inspiring students through the shared value of service — and that few of their colleagues know about it and/or that their work has not penetrated the dominant narratives that define what legal education “is.”  My strong sense, however, is that this role, to the extent that it exists in legal education, has been largely if implicitly ceded to clinical law faculty.  It needs to be restored to a central place across the entire institution.

That’s enough for now.  There is much more to be said about the idea of shared values for law schools, legal educators, and the legal profession.  I have said nothing about the institutional and organizational implications of all of this, both in the past, at present, and in the future.  I hope that I’ll have time in the next few weeks to return to the topic.

All thoughts and comments are welcome, of course.

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* My first law firm, in San Francisco, only hired new associates from a small number of law schools and set strict class standing cut-offs for graduates of each of those schools.

[This is part of a five-post series. In all, the posts are: