Moving Backwards on the Path to Law

In his lecture, The Path to Law, Oliver Holmes combats the view that law is simply "a system of reason that is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions". It's hard to disagree with Holmes' position. The naïve idea that law could be viewed in a vacuum devoid of a host of mitigating factors outside of logical forms was quickly subverted by my law school professors in their lectures about policy and economic considerations and was easy to see when following along with the judicial opinons in my assigned readings.

However something I could grasp within days of beginning my studies was clearly still debatable in 1897. Holmes mentions an esteemed judge that believed "judicial dissent...(was)...simply that one side or the other were not doing their sums right, and if they would take more trouble, agreement inevitably would come." But the law is ripe with examples to the contrary. Take for instance Watkins & Son v. Carrig. A contractor makes a deal with a homeowner to dig a hole in his yard to be used as a cellar. The contractor encounters excessive stones in the ground and gets the homeowner to orally agree to an increased price. According to prevailing contract jurisprudence in 1941, the pre-existing duty rule should have made the price increase agreement void without consideration yet the court held the old contract was rescinded and a new one formed upon the agreement to increase the price. Here a lawyer knowing only how to recognize and argue logic would be almost useless to his client. There is simply no place within the logical equation for a judicial gut feeling that the homeowner should prevail for a number of unregistered reasons. It's an immature view of the law that doesn't exist in modern real life practice.

Yet transcendental nonsense has survied, indeed thriving, into modernity at least in one area. The notion that the law can be boiled down to the interchange of transcendental nonsense, "is the natural error of the schools", says Holmes. Having just completed the first year curriculum of a top law school, it seems like this rich flawed tradition continues. The only incentivized skill is doing well on exams and exams ask students to identify and communicate the legal fictions such as consideration, or duty, or the reasonable person. An old exam one of my professors published showed the common grading style of making checkmarks in the margins. First sentence, identify the issue and state it; 2 check marks. Next three sentences, state the generic rule of law; 4 check marks. At the end of each paragraph, he totaled the number of check marks in the margins and the final grade was the total of all paragraphs. This video game bonus point style grading forces students to only consider their case reading and class lectures in terms of kernels that can be robotically restated in a few sentences under extreme time pressure. How are we supposed to evaluate our place within the law after playing this frivolous game? What actual knowledge do we have?

Defenders of the curriculum might argue that the point is to give the uninitiated a fluency in legalese and legal argument through immersion. But it sells students' abilities short to think they can’t absorb legal diction while seeing how the law works. Shouldn't we read some briefs and trial documents in order to see what the argument and evidence was and watch how judges interpret them? Shouldn't we learn the underlying political and economic policy discussion and how best to navigate the legal system using these considerations? Knowing the language of law is helpful but no one should learn to speak before they know how to think. "You can give any conclusion a logical form", says Holmes, suggesting that the real practice of a lawyer happens before we wrap them in their fancy logical expressions.

Furthermore, narrowing the focus to one goal does a great diservice to students. A first year law student is eager to learn, energetic, and will form a sense of self within the law that will likely last his entire career. At least at Columbia, it's the only year with required coursework. Based on his work within the first year curriculum, a student needs to evaluate where his skills and interests lie within the law in order to make meaningful career choices (summer internships, journal participation, second year coursework, etc.) Furthermore close to 75% of our ultimate law firm employers will base their hiring decisions on our performance in this time. This period is far too important to only be learing to speak like a lawyer.

So why has the focus on transcendental nonsense preserved into modern legal education? Holmes suggests its resiliency exists because it "flatter(s) that longing for certainty and for repose which is in every human mind". In law school the longing for certainty is the longing for the way things have always been done. This inertia combined with the prisoner's dilemma of losing a competitive edge amongst other schools in law firm recruiting makes it difficult to see any school taking a hard look at switching its methods.

Law schools should take a cue from a trend within medical schools. For example, the University of Virginia's medical school recently redesigned its first year curriculum which eliminates the traditional classroom study and exams on general topics. Instead students do their foundational study on their own and use their classroom time in groups working on mock cases that teach them in real time how to apply the material they are studying. Medical school is teaching a constantly evolving topic and the consequences of poorly trained doctors are greater than poorly trained lawyers. This might explain why they are more apt to make pedagogical adjustments with an eye towards the future while law continues to be smitten with an idealized past. Although the force against is greater, however, it ultimately it falls to elite law schools, less concerned with competing with other schools, to lead the way in a serious revision of the teaching approach. Otherwise a broken, backward looking system will continue to generate unprepared lawyers.