A Fundamental Divide: Successful Lawyering and Current Legal Education

-- By LaurenRosenberg - 18 Apr 2009

(A revision of William King's Leff, Lawyering, and Law School)

Introduction

In Swindling and Selling, Arthur Leff describes successful lawyering as understanding social phenomena to facilitate or retard future action. The current legal education—traditional analysis of judicial opinions—precludes understanding the situational factors that led to legal decisions. Consequently, there is a fundamental divide between the practice of lawyering and legal education. To remedy this divide, law schools should incorporate social science into the legal curriculum. This social scientific knowledge, coupled with traditional analysis of judicial opinions, will provide students with the skills to assess social interactions and remedy societal problems.

How Lawyers Think

According to Leff, lawyers are particularly interested in “actual behavior of actual people in actual transactions.” Lawyers are fundamentally concerned with the examination of underlying social forces and their impact on transactions. Which prior experiences influenced A to commit a certain act? Why did A commit this act instead of some other act? An understanding of the causes and effects of human action allows lawyers to more effectively counsel and advocate. By considering the experiences and social interactions that have led to a particular legal matter, a lawyer can determine what form of action or argumentation would best advocate for his or her client. Essentially, a successful lawyer understands the individualized particularities that led to a present situation.

What Lawyers Do

According to Leff, lawyers “consider alternative future social snapshots and then attempt to encourage or prevent their actualization by facilitating or retarding particular human action.” Lawyers who understand the possible outcomes of a situation can use their advocacy skills to shape the future. This is a distinctly powerful role since lawyers can choose the types of situations in which to assert influence. Unlike politicians who must act on the desires and pressures of constituents, lawyers have the ability to select the area of law and types of cases in which to facilitate particular human action.

The Divide

If lawyering requires understanding social interactions and employing this knowledge to affect future outcomes, then a proper legal education should teach this skill to students. While reading judicial opinions is important to teach students legal procedure and doctrine, this classic law school method precludes examination of the nuanced situational factors of each case. When students are limited to analysis of the basic facts and the holding, there is not an opportunity to examine the social dynamics that led to the particular dispute. This represents a fundamental difference between what is learned in the classroom and what is necessary for successful lawyering.

A Proper Legal Education

A more effective law school curriculum would teach students how to analyze the social, economic and psychological factors that shape and constrain human interactions. The analysis of judicial opinions should be supplemented with education in the social sciences to teach students how to think and act like lawyers. Currently, Columbia Law School allows individuals to enroll in certain courses in other disciplines of the University (contingent on approval by the Dean), but few students take advantage of this opportunity. The law school curriculum should incorporate education in other disciplines to equip students with the skills to assess social interactions and to use this knowledge to affect change.

For example, law students are required to understand and interpret Congressional statutes. In enacting legislation, these lawmakers are influenced by the social dynamics of constituents, lobbyists, and their political views. The study of social sciences, such as history, sociology, and psychology, allows students to understand what factors led to the approval of a particular law. This knowledge can also allow students to anticipate future congressional action. Law students who graduate with an understanding of legislative intent and an ability to anticipate future lawmaking can more effectively advise clients faced with possible legal conflicts. Moreover, these law students who understand the social dynamics of political decisions will graduate with an ability to influence policymakers and remedy social problems.

Conclusion

A proper legal education requires more than an understanding of precedent and doctrine. Training students how to think and act like a lawyer requires teaching them to understand how social factors interact to influence human decisions. Consequently, law school curricula should encompass the social sciences in addition to analysis of judicial opinions. When legal education teaches students to interpret the underlying forces in transactions, then students can graduate with the opportunity to facilitate particular human action and remedy societal problems.

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