[Continuing my now-weekly series on new directions for legal education. The first two posts are here and here.]
My two posts about a law school of the future were labeled “visions,” but they were blueprints rather than visions. Visions — organizational, institutional visions — aren’t so detailed, and if there is any hope for a vision becoming reality, then it can’t be mandated from above. Visions don’t come on stone tablets, and they don’t get carried down from the mountain top. As much wiser people than I have written, visions get built, and they are built around values, purposes, and big themes and goals.
In those senses, I don’t have a vision of legal education. Not yet, anyway. I do, however, have a set of intuitions about what I’d like to do with my students, things that are rarely captured in conventional conversations about law school pedagogy and exam writing (and techniques), about faculty identity (“classroom” faculty, “clinical” faculty, “legal writing” faculty), about the types of jobs that students should aspire to securing within nine months of graduating. Those things are important to many, many people. In their usual form, at least, they’re not that important to me.
I want to arm law students — all law students — with a sense of overarching personal capability and self-confidence that in some fundamental way can pull them through the troughs, valleys, and crises that are too often associated with not remembering the black-letter rule, not knowing how to draft a discovery plan, and other, similar nuts-and-bolts issues. Here is why:
Law students today are graduating into a world of perpetual free-agency. Not in the celebrity athlete sense, but in the make-your-own-job-and-career sense. Over at Concurring Opinions, right now a group of my colleagues (some of them Madisonian.net contributors) are critiquing a terrific new book by Orly Lobel (University of San Diego), Talent Wants to be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding (Yale 2013). The thesis of the book is that law and public policy should be designed to enable “flows” of talent; firms, industries, and markets will be better off overall and in the long run.
In the abstract, that’s a thesis that appeals to me. I grew up in what became the Silicon Valley and practiced law there for a while. The economic vibrancy of the place is hard to miss (income and cultural inequalities are hard to miss, too, however). But when you look at the question from the standpoint of the “talent” itself, the benefits of “open” flows sometimes shrink. Not everyone has the wherewithal to take advantage of nominally open doors. The labor pool and the individuals within it need to have the capabilities that make “flows” pay off. If you’re an entrepreneur or an innovator (a much sought-after cultural “creative”), the system works in your favor. Not everyone is an entrepreneur or an innovator; not everyone is a sought-after engineer. In that case, “talent” doesn’t necessarily want to be free so much as “talent” wants a job and an income. What about hairdressers, who are often subject to restrictive covenants? They, too, can benefit from talent flows — but only if and when hairdressers not only know how to cut hair (and aren’t held back by professional licensure requirements) but have the self-awareness, courage, and spirit that says, when it’s appropriate, take this job and shove it. I’ve found a better gig.
Lawyers, especially young lawyers, are in my experience too often saddled with an absence of that self-awareness, courage, and spirit. (They are also, of course, saddled with enormous debt, and the two are related – but distinct.)
Query: Can a law school do more — much more — not just to teach (in effect) the form (books) of practice, but also the underlying spirit of self-assurance and agency?
It can be taught; it can be learned. With my students today, I sometimes share a story from my own junior days, when a senior lawyer told me to draft a motion for something or other. By that time, I had learned that the fastest way to put a motion together was to pull appropriately-titled documents from a form book in the firm’s library, modify them as needed, draft a relevant points-and-authorities, assemble needed evidence (testimonial declarations and the like), then file. But I came back from the library empty-handed; there was no form for the motion indicated by the senior lawyer. What should I do, I asked, when there appeared to be no form of motion to match the request?
The senior lawyer patiently sat me down and explained that a motion is simply a way of asking a court to give you what you want. You can ask for anything, within reason (more or less); the art lies in how you ask and how persuasive you are. Maybe you have a statute or rule on your side. Maybe there is precedent. Maybe the evidence is really compelling. Add it up! But don’t be limited, he instructed, by what the form book writers tell you.
This, I tell my students, was a revelation. (It is only partly an excuse that my Civil Procedure experience in law school consisted of exactly one semester, with the amazing Barbara Babcock, that focused almost entirely on the due process dimensions of attachment orders and Rule 23.) I can’t say that I was a changed lawyer after that conversation, but the dialogue certainly re-aligned my sense of my own professional agency.
I’ve been noodling on this agency question for a while. I wrote here about my proto-efforts to teach a single seminar session on leadership skills for law students. I was working then with very small groups of students. Next Spring, I’m going to expand that. As an extracurricular short course, I’ll offer a six-week “leadership skills” program to anyone in the law school community. The reading list is likely to include Freedman, At the Heart of Leadership; Hesselbein, My Life in Leadership; and Kolditz, In Extremis Leadership among others. I’m likely to use one text per week, so suggestions are welcome. (To be clear: This will not be a for-credit activity; I’m just volunteering a little time and hoping that some students will volunteer some of theirs.) I’m aware that some law schools are tackling leadership questions in a much more thorough way. Among law schools, Elon, in particular, seems to have a pretty thorough commitment to the issue. But I haven’t searched comprehensively; perhaps I’ve missed some obvious candidates.
Not every law student wants to be a “leader.” The point of the mini-course, however, is not to train a bunch of new presidents and chairs of the board (though that would be just fine). The point is to expand the students’ collective sense of personal agency. Their capabilities. Their visions of themselves. (Perhaps even to match our graduates’ sense of their agency with our own, as faculty members. Nb. this post by Bill Henderson from 2008, and my comment in reply.)
I will report back. The vision building will continue.
[This is part of a five-post series. In all, the posts are: