Legal education has changed a lot since its depiction in The Paper Chase, in which the imposing Professor Kingsfield grilled James T. Hart into “thinking like a lawyer.”
But you could be forgiven for thinking that all law professors stalk around their classrooms humiliating students with questions posed in fake British accents after reading David Segal’s piece in the New York Times. Still, regardless of Segal’s one-sidedness, inaccuracies and overstatements, there are some things to take to heart from his article. At the same time, despite the several excellent critiques of the article already out there in the blawgosphere, including in particular this one by Frank Pasquale, there remain one or two things to say in defense of legal education and legal academia. So in decidedly un-Kingsfield like fashion, what follows are some open-ended musings about what we, as law professors, could do better and what we already do well.
We, as a profession, could certainly do a better job of instilling the full range of attributes that a thoughtful, precise and dedicated lawyer should bring to her profession. Some of these attributes are indeed skill or craft-like, in the sense that Segal and some of the lawyers he interviewed focus on. Many of those are better learned on the job. To the extent that is not the case, many law schools (including mine) have robust and excellent clinical programs, in which students acquire skills in the context of thoughtful opportunities to reflect on what they are doing. Still, many law schools can and should continue to expand on these opportunities, to the extent that they can be done well and are not prohibitively expensive.
Other sorts of attributes are much harder to acquire during a hectic law practice. They include the ability to distinguish legal doctrine from broader theory; to discern policy arguments from legal arguments; and to look ahead (and sometimes behind) to attempt to assess the broader consequences of a legal strategy. These sorts of things, we might call them lawyering-and-intellectual life skills, require time and space to cultivate. While I think that, in the aggregate, law professors (including clinical professors) teach this full range of skills, we do not, as institutions, do a particularly good job of disaggregating them for our students, nor of impressing on our students the importance of sufficient exposure to all of them. Going forward, we should think about how and when we are teaching (respectively) doctrine, structure, practice, and theory, and whether we are doing each sufficiently clearly, deeply, and well. This will enable law schools to take up, and take on, the Segal critique and to respond in ways that are not completely defensive or, on the other hand, completely capitulating to the demands of corporate law firms. To a significant extent, this is the project that former Dean Ed Rubin has embarked on, and I think it is an important one. At its essence, it is about how to fashion a stronger pedagogy for legal education for all students, for the long and short runs. It is not, as Segal’s article might lead one to believe, about turning law schools into better conveyor belts for firms.
This leads naturally to what most law schools already do well, which is to begin the process of training students to practice law in a context that also furthers (or for some students, provides their only exposure to) a liberal arts education. We could lop off a year of law school and make it much cheaper for students. We could also turn to the 100% trade school model of legal education, though that in all likelihood would make law school more, not less, expensive. But either path would entail a significant loss to the legal profession and the people it serves. For most law students, legal education provides their only opportunity to learn about the role that law reform has played in our country’s history. For many, they learn for the first time about the structure of our government, the history of separation of powers, the uniqueness of the bill of rights, and the singularity of this nation’s embrace of the role of private citizens to shape the law.
As future lawyers, whether they realize it or not, our students will wield immense power over their clients’ lives. For them to be inducted into the distinctly American version of the legal profession without at least a brief stop along the way to consider where it came from, what it has done, and what it could mean in their hands would do a tremendous disservice to them, to their future clients, and to the legal system that, for better or worse, shapes and determines access to economic, social, and political life in America. Law professors collectively do irreplaceable work by providing this broader context for our students.
An integral part of being able to provide this deeper education is our ability to engage in research and writing. Scholarship–at its essence the attempt to add knowledge to the world–is intimately connected to this kind of teaching. While I agree that, at the moment, there is a bit of an over-production problem in terms of legal scholarship, the solution is not to eviscerate the enterprise altogether. Instead, the tack should be to take the opportunity to think about what sort of thinking scholars in particular are situated to do. Chief Justice Roberts may enjoy taking cheap shots at scholarship that appears unrelated to legal problems presented to him in real time, but our teaching would be much weaker if all we did was draft amicus briefs (whether as actual briefs or as articles) for the courts. (Many of us do this in any event out of a sense of service to the profession, another fact overlooked by Segal.) If the privilege and opportunity to investigate the history, structures, and effects of the law were exercised only to solve narrow legal problems, vast swathes of understanding, critique, and knowledge production would be swept aside, to the detriment of our students, their future clients, and a country held together by some sense of adherence to its obscure yet ubiquitous legal system.
Rather than react defensively to the current mood of reconsidering legal education, I hope we can try to think constructively about how to maintain the trajectory of modernization and improvement that has been under way for some time. I hope we can also continue to make the case for why the many people who will find themselves in need of legal representation will be better off if their lawyers have mastered much more than a narrow set of skills. If and when the state is standing between you and your health, your loved ones, your belongings or your freedom, you will want much more than someone who knows how to fill out the forms.