LEFF, LAWYERING, AND LAW SCHOOL

Originally by Will King

Intro

In the conclusion of Swindling and Selling, Arthur Leff proposes a model to describe how lawyers think and what lawyers do. Lawyering, according to Leff, involves thinking about the social phenomena relevant to a conflict and attempting to anticipate the future with this knowledge in mind. Assuming that Leff’s description is largely true, it seems that a law school education is not an effective way of teaching “lawyering”. The methodology of teaching the law by inundating students with judicial opinions falls short in two ways. First, the curriculum overemphasizes doctrine, policy, and modalities of argument while failing to provide students with a realism-inspired model of what lawyers do. Second, by focusing the vast majority of students’ time on parroting the law found in judicial opinions, the law school deters its clients from gaining a broader, interdisciplinary knowledge base. Legal education would be improved through an increased emphasis on consilience and critical evaluation of the underlying factors influencing the legal process.

How Do Lawyers Think? What Do They Do?

According to Leff, lawyers find valuable information within transaction costs. Leff states that it is the “actual behavior of actual people in actual transactions that is of particular interest” for lawyers. It is therefore essential for a lawyer to examine the latent social forces that shape conflicts and transactions. Lawyers need to consider why person A committed act X and what influences acts Z and W had on A, prior to the commission of act X. By understanding the causes and effects that influence human action, a lawyer will be in a better position to both counsel and advocate.

Leff argues that lawyers must focus their attention on actual social phenomena and closely examine human behavior. The theory implies that, in order to be effective, a lawyer must necessarily seek to relate to those seeking his guidance. Thus, a lawyer, while addressing his client’s problem, should be constantly aware of the influences of the myriad social forces that have shaped the conflict. When a lawyer pays close attention to the many components of his client’s situation, 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. For example, a defense lawyer with an African-American client charged with possession of crack must be cognizant of the background to the harsh federal laws dealing with that substance and statistical evidence of the disproportionate enforcement of said laws along racial lines, as well as his client’s background and experiences.

By applying broad knowledge of relevant phenomena to a given conflict, a lawyer can enter the realm of social instrumentation. The lawyer who can anticipate the future can simultaneously use his knowledge of the law and human interaction to help shape the future. Viewed in this light, a lawyer has considerable power. Arguably, he also has less accountability than, for example, a legislator. In attempting to remain true to his own values, though, his amalgamated understanding of the world around him will be valuable. He can predict the externalities that may result from his conduct in a given case, and police his own behavior in view of the relative desirability of such effects.

Leff and the Law School Curriculum

The ability to understand social phenomena through a multitude of approaches is a component of effective “lawyering”. This skill may be developed during the actual practice of law, but it is not adequately promoted by the standard law school form. The process of learning the law by reading judicial opinions provides students with a painfully limited picture of what actually happened in a given case. The claims brought and decisions handed down are influenced by a broad range of factors, very few of which can be adequately understood by learning the holding of the case and attempting to distill it into a coherent principle. A more effective law school curriculum is one that teaches its students how to analyze the social, economic and psychological influences that shape the functioning of our legal system in individual cases. 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. It would also be useful to teach certain subjects, such as constitutional law, from a more critical perspective.

By incorporating other disciplines into the law school curriculum, students will be better equipped to consider “alternative future snapshots”. If a student focuses not only on the law, but also on how the law influences human action, the student can create a better-informed personal model of how the world works. To a large extent, an interdisciplinary approach is already recognized as valuable by the powers that be. Columbia, for example, allows students to take several courses from other graduate institutions. Further, many professors (and students) have advanced degrees in other disciplines. However, the value of such a consilient approach is underemphasized by the current formalized structure of law school.

Constitutional law is a glaring example of some of the shortcomings of a legal education. In studying law of paramount significance, almost all of the student’s resources are devoted to reading and then parroting the legal arguments of Justices. In the classes this semester, professors have consistently dismissed attempts to characterize the Court’s decisions as politicized whatsoever. A student who aspires to one day argue before the Court would be well-served to know not only the nebulous intricacies of strict scrutiny, but also the forces that cause many of the Court’s most important decisions to be decided by a 5-4 vote, with each group of Justices arguing for vastly different interpretations of the same words. Leff would say that knowledge of the dynamics between members of the court, social movements related to the case at hand, and the backgrounds of the Justices is essential. Indeed, it seems unlikely that an attorney competent enough to reach such a career milestone would neglect this information. But the current system of teaching constitutional law, as seen from limited experiences in the first year at Columbia, believes such an approach to be unnecessary.