-- ErandiZamora - 21 Apr 2009

* Leff, Lawyering and Law School o Intro o How Do Lawyers Think? o What Do Lawyers Do? o Leff and the Law School Curriculum o Conclusion

Leff, Lawyering and Law School

-- By WilliamKing? , Edits by Erandi Zamora

Intro In his conclusion of Swindling and Selling, Arthur Leff uses his research to describe how lawyers think and what lawyers do. Lawyering, according to Leff, involves thinking about underlying social phenomena and anticipating the future. If Leff’s assertions are true, then there is a disconnect between what lawyers do and what law school students are taught. The methodology of teaching the law solely through the reading of judicial opinions does not effectively reach Leff’s scope of lawyering. One way to remedy this divide is to incorporate social science into the legal curriculum.

How Do Lawyers Think? According to Leff, lawyers, unlike economists, find transaction costs to be of great importance in understanding “actual behavior.” Transaction costs reveal useful information about the parties’ knowledge and freedom. This information allows lawyers to examine the underlying social forces that result in human action. Lawyers need to be equipped with the knowledge of why person A committed act X and furthermore what influences acts Z and W had on A, prior to the commencing of X. By understanding these causes a lawyer will be in a legitimate position to, both, counsel and advocate.

Leff believes that a lawyer must focus on social phenomena and closely examine human behavior. Implicit in this belief is the need for a lawyer to relate to those seeking his guidance. A lawyer examines his client’s problem, including the restraints and privileges that the law and social dynamics have allowed. When a lawyer pays close attention to the actual phenomena in his client’s world, he is able to understand the structures and processes that are at work. Consequently, a lawyer uses this information to advocate for his client in the most efficient and logical manner.

What Do Lawyers Do? Leff states that it is a lawyer’s job to “consider alternative future social snapshots and attempt to encourage or prevent their actualization by facilitating or retarding particular human action.” A simultaneous knowledge of the law and human interaction allows a lawyer to anticipate and shape the future. Lawyers therefore, can influence their society in ways that the legislature cannot. Unlike a politician who is at all times susceptible to influence and pressure from constituents, a lawyer has the opportunity to think and act freely. Of course, Lawyers are constrained by alliances and relationships. Yet, lawyers have the power, though at times limited, to choose where and for whom they work.

Assuming Leff’s proposition that lawyers attempt to encourage or prevent the actualization of an anticipated future, there arises a question of why they act in this way. An optimist would say that lawyers analyze future social occurrences because they desire to prepare for and remedy potential problems. Nevertheless, a cynic would say that the lawyer who can anticipate and influence the future has the power to benefit at the expense of others. Regardless of how one chooses to answer this question, it is the nature of lawyering and not the motives behind it that Leff addresses. Lawyers, regardless of morality, use their knowledge of human interaction and social phenomenon to cause other humans to act in a certain way.

Leff and the Law School Curriculum Leff’s theory reveals a disconnect between the law school curriculum and the requirements of real life practice. The process of learning the law by solely reading judicial opinions does not allow students to analyze the full scope of the “transaction costs” of each case. The claims brought and decisions issued in a particular case are influenced by underlying social factors, many of which are not evident in the judges’ reasoning and holding of the case. A more effective law school curriculum would teache students how to analyze the social, economic and psychological influences that shape and constrain a person’s decisions and his ability to have justice. The reading of judicial opinions is an important part of teaching students about the procedure and vocabulary of lawyers, but these opinions would be more effective if supplemented with social science.

Incorporating social science analysis into the law school curriculum would enhance the students’ ability to encourage or prevent “alternative future snapshots.” If a student focuses not only on the law or the immediate circumstances of the case, but also on the underlying causes of those circumstances, the student acquires a better understanding of how the world works. To evaluate a situation, it is important to know why a party acted in a certain way and what “transaction costs” were involved. This knowledge would teach the student to formulate a better legal claim. Furthermore, understanding human action and the social forces at work would give the student a better grasp on the public policy considerations and allow him to advocate for the rule of law that is most beneficial to society.

Conclusion Arthur Leff’s characterization of the nature of lawyers advances the notion that lawyers, in order to effect change, must have a thorough understanding of the past and the present. The knowledge that is essential to a lawyer, consist of more than knowing and learning the law. Consequently, a law school student should be exposed to more than judicial opinions. Incorporating social science into the law school curriculum would allow the law school student to develop an understanding of human interaction that will be crucial to his serving as an advocate.