Law schools, we are told, are failing to properly train lawyers for the profession. Most of the criticism comes from those who insist that legal education is too impractical, focusing on abstract questions with little relevance to legal practice and failing to provide the concrete skills in interviewing, drafting, etc. that are an attorney’s bread and butter. What happens in law schools, the critics insist, bears little resemblance to what happens in legal practice.
Before law professors join too enthusiastically in the self-flagellation, however, I think that we would do well to question the assumption that what happens in law schools ought to closely mirror in some sense what happens in legal practice. Rather, I think that law schools ought to devote their attention to those areas of legal education where they have a comparative advantage. What do law schools do well? The answer is that we do “theory” well. We do not, however, do “practice” nearly as well as . . . well . . . practitioners. Accordingly, I think that law schools should focus unabashedly on “theory.”
The scare quotes in the last three sentences are deliberate. When I say “theory,” I don’t necessarily mean philosophy or critical theory or deep meditations on the methodology of law and economics. Rather, I want the term to mean something like abstract, reflective, or big-picture approaches. Hence, theory does include subjects like philosophy or economics, but it also includes understanding doctrinal subtleties or careful analysis of the moves made in one of Cardozo’s pocket-picking opinions. Much of what I am thinking of as “theory” would fall into the academically much maligned category of “doctrinal thought.”
I think that law schools ought to focus on “theory” for three reasons. First, at some deep subterranean level I think that it is useful in practice. Lawyers who are intellectually excited by and engaged with the law are more successful than those who flopped into the profession by default and seek the minimal legal understanding necessary to perform their work today. They are also happier. Second, I think that “theory” in this broad sense is an area where law professors have a real advantage over legal practitioners. Finally, if students don’t get a broad exposure to theoretical perspectives on the law in law school, it is unlikely that they will get them in practice.
Inherent in this vision of the law school, however, is the reality that law schools are one player in legal education, rather than the player. Many of the law-schools-are-failing-to-train lawyers complaints essentially boil down to the assumption that upon graduation with a JD our students should be ready to hang out their shingle and begin the practice of law. I see no reason, however, why this should be taken as the standard against which to measure legal education. Law was learned through apprenticeship long before there were law schools. There are great benefits to apprenticeship. I learned much more about writing appellate briefs from clerking for a judge or going over drafts with a senior partner than I ever learned in law school. Law firms, however, wish — as much as possible — to push the task of training attorneys entirely onto the shoulders of the law schools. Yet there are many areas where practitioners enjoy a massive comparative advantage over law schools.
What about the law student who graduates and goes into solo practice you ask? My answer is that she shouldn’t. Indeed, if we are serious about increasing the quality of legal education, then I suspect that ultimately we are going to have to restructure the legal profession itself. English barristers, for example, are required to go through a period of formal “pupilage” before they are allowed to practice for themselves.
To be sure, there is much about law schools that could be improved. Still, at the end of the day, I think that the profession needs to recognize that the training of young lawyers is not something that they do because the law schools “fail.” Rather, legal education is something for which law schools and senior lawyers are jointly responsible. If that means changing the process of admission to the profession or even the nature of employment contracts for young lawyers (who perhaps should look more apprentices and less like at-will employees) so be it.
Lawyers who are intellectually excited by and engaged with the law are more successful — that is true. As a practicing lawyer who enjoys law, I discovered that in a particular metric I’m performing as well as three offices of attorneys in my company in this state. That was a real surprise.
However, the reality is that upon graduation upon graduation with a JD our students or at least fifty to eighty percent of them, if you are looking at 90% of the graduates from law schools in this country, be ready to hang out their shingle and begin the practice of law
Ethics committees in many states are dealing with the issues this creates.
From my perspective it is not so much that large law firms desire to shift the burden to the educators, but that there is a significant problem with young lawyers that most employers lack the skill, ability and knowledge to train (especially those new lawyers who end up training themselves as solos).
Do an analysis of the bottom 60% of all law schools and their graduates. You will see exactly what I mean in terms of the real issues and problems that face many graduates and that create the problems ethics committees face over and over again.
Rather, I think that law schools ought to devote their attention to those areas of legal education where they have a comparative advantage. What do law schools do well? The answer is that we do â€œtheoryâ€ well.
I don’t think that argument quite works. For instance, suppose (contrary to fact) that law schools did jumping jacks really well. It doesn’t follow that law schools should add more P.E. classes.
However, I agree with you that the type of “theory” you are talking about is actually quite useful for practice, and difficult to pick up once a student is *in* practice (Orin Kerr might disagree with me there). But it seems to me that there is plenty of room for more learning by doing (with feedback) in law school rather than learning by listening and talking. That includes applications of “theory.” It may be unrealistic to expect graduates to be ready for solo practice on graduation, but that doesn’t mean law schools shouldn’t start the process.
So you are suggesting that because the law schools have invested all of their money and energy in recruiting faculty who have no ability whatsoever to teach actual legal skills that the law schools should not try to acquire new teachers who can actually teach real legal skills? Perhaps a bit blindly self-serving?
I am not certain how you have concluded that lawyers interested in theory are happier than other lawyers. Many lawyers are, in a sense, problem solvers, often for people whose problems might raise deep theoretical problems but who basically want their problems solved on a cost-efficient basis. In this sense, many lawyers act as counselor, mediator, and social worker, and less as scholar. I am not certain we do a very good of training people for these roles. This is not to say that theory is in any sense irrelevant to performing these roles, but integrity, organization, good judgment, well-developed social intelligence, are probably the key aspects of good lawyering of this type.
To get back to my first reaction–how do you know, other than anecdotally, what skills and interests make a lawyer happy–I know many folks who are practicing law who are sublimely disinterested in theory, even at the plain doctrinal level (which is more and more relegated to second-class citizenship by law professors, at least in their scholarship and certainly to some extent in their classrooms), but by my estimation seem happy helping people work through their legal problems, often without doing a whole of legal research or deeply abstract thinking.
Perhaps law school itself is part of the problem: I wonder if, as you sort of suggest, some of our students might have been better off if they could still get most of their education through apprenticing.
I am not advocating that the first thing we do is kill all the law professors–I do think we give value, and to some students, a lot of value. But maybe not enough value to enough students to warrant a three-year track of formal legal education.