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Law in Contemporary Society
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Maximizing the Utility of the Existing Law School Curriculum-- By WilliamKing - 27 Feb 2009-- Revised By MolissaFarber - 17 Apr 2009 IntroIn Swindling and Selling, Arthur Leff describes “lawyering” as both thinking about the underlying social phenomena of the world and anticipating the future. If we accept Leff’s definition as either true or desirable, then there is a divide between what lawyers do and what law students learn. Law school’s reliance on the case method is ineffective in meeting Leff’s goals. However, it is possible to use the existing law school curriculum to construct an educational program that is more in line with Leff’s ideas by choosing courses and experiences that approach the law from a social science perspective, and pursuing opportunities to interact with clients.ThinkingHow Do Leff’s Lawyers Think?Leff compares lawyers to economists. While economists often reason without considering transaction costs, these costs are an integral part of a lawyer’s thought process. Thus, lawyers recognize the reality of a situation by thinking about the “actual behavior of actual people in actual transactions.” Lawyers examine the underlying social forces at work between parties to an interaction. Understanding the factors influencing human action will place a lawyer in a stronger position to counsel and advocate. Examining these underlying social forces, according to Leff, requires focused attention on both social phenomena and on human behavior.How Can We Learn to Think in Law School?If the ability to think about human interactions is essential for lawyers, then the traditional law school class seems to fall short in developing this thought process. The use of judicial opinions and casebooks does not necessarily allow for a focus on the transaction costs of each case. For example, a first-year contracts class may study unconscionability, but without an understanding of the context in which claims are brought and the social forces that are at work, students will not be able to fully develop their minds in the way Leff suggests. These mental abilities cannot be developed simply by learning the holding of a particular case. A more effective law school curriculum would teach its students how to analyze the social, economic and psychological influences that shape and constrain a person’s ability to have justice. The reading of judicial opinions is an important part of teaching students the procedure and vocabulary of lawyers, but these opinions would be more effective if supplemented with social science. While first year law students lack choices in their curriculum - an issue in legal education that will not be addressed here - an upper-level student attempting to shape his own curriculum can chose courses taught by professors with a social science background. Information about professors’ educational backgrounds is publicly available on the internet, and advanced degrees in social science fields might indicate that a professor places some importance on understanding the underlying social factors at play in a given situation. The conscientious student could chose to meet with potential professors during office hours to gain an understanding of their perspectives on their course material before ranking classes in the course selection process. Of course, there are certain complications involved in the course lottery that are not considered here, but it remains possible for a student to exercise some degree of control over his upper-level curriculum.DoingWhat Do Leff’s Lawyers Do?To Leff, a lawyer considers alternative futures and then influences human behavior in a way that brings about the best result. A lawyer thus shapes the future by utilizing his knowledge of the law and of human interaction. Lawyers, therefore, can influence their society in ways that the legislature cannot. Unlike a politician, who is susceptible to the influence and pressure of his constituents, a lawyer can think and act freely. Of course, lawyers may be constrained by relationships or by particular work environments. In large law firms, for example, a lawyer may not have the opportunity to think and act freely if he is expected to simply do the work that is assigned to him by a partner. Yet, in theory at least, lawyers have the potential to choose where and for whom they work. In dealing with clients, a lawyer seeks to understand the structures and processes that are at work in his client’s world. The lawyer is then able to use this information to more effectively advocate for his client.How Can We Learn to “Do” in Law School?Incorporating social science, as discussed above, is also useful in learning to “do.” If a student focuses not only on the law, but also on how the law influences human action, the student acquires a more useful skill. By studying social dynamics, a student will be able to anticipate how and why a law was formed. This allows the student to begin to use his knowledge to facilitate human action. Additionally, the current law school curriculum allows upperclassmen to participate in supervised work experiences through clinics and externships. Certain extracurricular legal projects are open to first year students, as well. These opportunities allow a student to apply new ways of thinking to actual client problems. Under the guidance of a professor who has some experience in the field, a student can practice applying his understanding of social structures and processes in a real-world setting.ConclusionBecoming an effective lawyer, according to Arthur Leff, requires more than simply learning the law. Consequently, a law student should expose himself to more than judicial opinions. To whatever extent a student can chose his own experiences in law school, that student should pursue courses and professors that focus on social science approaches, and should seek out term-time opportunities to interact with clients and solve actual problems. In this way, a law student can develop an understanding of human interaction that will enhance his ability to serve as an effective advocate.Word Count: 997, not including this line. Original Paper It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. Leff, Lawyering and Law School -- By WilliamKing - 27 Feb 2009 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 the underlining social phenomenon of the world, as well as anticipating the future. If Leff’s assertions are true, then there is a divide between what lawyers do and what law school students are learning. 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 economist who ignore the microreality of transaction by reasoning in the absence of transaction cost, find importance within transaction cost. Leff states that it is the “actual behavior of actual people in actual transactions that is of particular interest” for lawyers. It is essential for a lawyer to examine the underlining social forces at work between the engaged parties. 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 and effects that create human action, a lawyer will be in legitimate position to both counsel and advocate. Leff believes that a lawyer must focus his attention on actually social phenomenon and closely examine human behavior. Implicit in this theory is the necessity for a lawyer to relate to anyone seeking his guidance. A lawyer examines his client’s problem, from the restraints and privileges that the law and social dynamics have allowed. When a lawyer pays close attention to the actual phenomenon taking place 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 then attempt to encourage or prevent their actualization by facilitating or retarding particular human action.” Leff extends lawyering beyond that of a mere professionalism into the realm of social instrumentation. The lawyer, who can anticipate the future, can simultaneously use his knowledge of the law and of human interaction to help 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 problems that may occur. Nevertheless, a cynic would take a different approach and say that the lawyer who can anticipate and influence the future has the power to benefit at the expense of others. No matter how one chooses to answer this question, it is the nature of lawyering and not the reason behind lawyering 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 If the ability to think about the social and human interactions is essential for lawyers, then there is a difference between what is learned in the law school classroom and what is learned after taking the bar. The process of learning the law by solely reading judicial opinion’s does not offer students the full scope of the “transaction cost” of each case. The claims brought and decisions given on a particular case are influenced by underlining social factors, many of which are not evident by simply knowing the holding. A more effective law school curriculum is one that teaches its students how to analyze the social, economic and psychological influences that shape and constrains a person’s 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. By incorporating other disciplines into the law school curriculum, students will be better equipped to consider the “alternative future snapshots” that Leff reasons lawyers work to encourage or prevent. If a student focuses not only on the law, but also on how the law influences human action, the student acquires a more general knowledge of how the world works. Congressional intent on behalf of lawmakers is crucial into the formulation of statutes and laws. These Congressmen are influenced by the social dynamics of the world in which they exist. Law students, by studying these social dynamics, will be able to anticipate how and why a law was formed. This allows the student to begin to theorize how to use his knowledge to facilitate human action. Conclusion Andrew Leff’s characterization of the nature of lawyers perpetuates the notion that lawyers, in order to implement change, must have an immense awareness of the past and 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. If the law school curriculum also consists of social science, the law school student will develop an understanding of human interaction that will be crucial to his serving as an advocate.
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