Capitalizing on Knowledge and Education

-- By ToddDensen - 13 Mar 2015

The Functional Reality of Law School

What function does law school play? Is it to educate the next generation of lawyers? To teach them doctrine; teach them how to “think?” The first year of law school is unlikely to serve most students more than to teach them to talk like lawyers. But when does this stop and legal training begin?

Lawyers are powerful. They use words to enact change. But is learning “black-letter law” the best way to train lawyers? One of the strangest things I hear at law school recruiting events is, “It’s okay if you don’t know how to do something. We will provide resources for you to learn the how to do it.” That’s well-meaning, but that really shouldn’t be how it works. Isn’t the point of law school to teach students how to become lawyers?

Perhaps that’s what most people believe the purpose of law school to be, lawyer training. The functional reality is that law school generally serves a more utilitarian purpose – to obtain legal employment. At least that is what Columbia and a number of other prestigious law schools actually do; they get graduates jobs. Is this then just an overpriced job search associate firm? There might not be anything wrong with that necessarily, but it conflates education and recruitment. Law school shouldn’t be an extended job interview, it should train lawyers.

This isn’t to say learning doctrine, history, and theory isn’t important; creative minds draw on history and theory to envision new paradigms. Law school ought to be about more than that though; it should be about learning how to practice (not simply how to be a firm drone). Law school needs to teach students how to solve legal problems. It is important for the painter to learn about art history, but it’s just as important – perhaps more important – that she actually learns to paint. Lawyers practice law, they don’t merely study it, and one cannot practice law without actually practicing law.

Experiential Learning

Law school isn’t entirely unequipped on this front. Schools, including Columbia, offer the opportunity for student’s to participate in clinical education. Clinics, unlike most classes offer students the opportunity to work with practicing lawyers on actual legal issues. This is a particularly valuable kind of experience for young lawyers. When Joshua Horowitz came to speak to the class what struck me was how important he found his relationship with Len Levinson, learning hands-on from a seasoned attorney. It occurred to me that experience was as valuable as his entire legal education prior because he learned how to handle actual legal work.

Clinical education though is limited. At Columbia, far too few students have the opportunity to take one, let alone multiple clinics. Alternatively, most classes are taught by academics that do not practice. Humans are highly adapted to interpersonal learning. Learning from others predates written and even spoken language. Yet law school continually treats interpersonal experiential education as secondary to absorption of transcendental nonsense.

How can we train lawyers to be powerful advocates for a better society when law school does not prepare them for practice?

Shifting the Paradigm

The model doesn’t make sense. Students should demand more experiential learning, legal employers should prefer students who have it, and schools should be willing to provide it, so why the stalemate?

Most students seek employment in large firms, where the pawnbrokers aren’t terribly concerned with actual legal skills. They care more for students who can grind, and demonstrate their ability to do so by grinding through 1L year with good examination grades. Students react by devaluing practical training.

Legal academics (i.e. professors) are wary of adding more practical education to the law school curriculum. Last year, Brian Leiter addressed the subject in the Huffington Post. He contrasts other professional schools that utilize practical education, mainly dental school, concluding, “law is fundamentally a discursive discipline, dealing in norms, arguments, and reasons.” He elaborates further that there are practical problems; schools are not equipped to offer experiential learning in a wide array of disciplines students might be interested in. And finally he concludes with a golden quip that demonstrates the fundamental misunderstanding that legal academics have with experiential education.

Forcing most of these students do to fifteen hours of experiential classes would simply deprive them of the class on antitrust or the law and economics of trademarks which they might have taken. Those doing JD/PhDs -- and, yes, they are students too! -- would have had to take classes that would have contributed nothing to their professional development as scholars and teachers.

I do not disagree with Leiter that a mandate of 15 hours by the Bar Association might not be an appropriate measure, but his rationale is flawed. The issue is that Leiter and most legal academics only see value in legal academia because that is what they do. Leiter fails to see that resources could easily be allocated from academics toward professionals, providing students with access to professors with actual client work without the expanding clinical offerings ad infinitum. He is unable to see that using “norms, arguments, and reason” in actual legal contexts - specific to a field a student is interested in or not - might actually be as valuable as simply studying the reasoning of judges in casebooks. And finally, he cannot see the value that future “scholars and teachers” would get from practicing law? Perhaps this is the most telling line of his piece. Most law students will become lawyers, yet legal academics seem inclined on training only more legal academics.

Individually, exercises like this essay are tools for growth. Even if law school isn’t changing, I can still use my time here to my advantage. I am anxious to expose myself to clinical education. I can take the black-letter law material I learn, and contextualize it in practice. I can project my future need for skills as a lawyer, and make sure I learn those things from the resources I have, not only through coursework.