What They Don’t Teach Law Students: Lawyering
nytimes.com
nytimes.com
The article offers what is really an academic critique of law school education. In effect, it says, "wouldn't it be so much better if we could just dispense with all that abstract case-law analysis and get on with teaching prospective lawyers how to draft contracts, how to try cases, how to handle client interviews, how to give strategic advice for doing acquisitions, how to negotiate personal injury settlements or divorce arrangements, how to represent clients before federal regulatory agencies, how to handle equity and debt funding for business ventures, and all the other things lawyers do." And it answers that question by saying, in effect, let's have experienced practitioners teach students in lieu of those who have been professors all their careers and who emphasize abstract academic writing as a primary means to career development, let's dispense with the classic core curriculum that teaches old cases like Hadley v. Baxendale as part of a student's foundational training and put in its place a lot of clinics where someone can guide students in how to negotiate, document, and close deals and in how to try cases, etc., and let's generally adopt an approach to legal education that allows students to be "client ready" by the time they first set foot in a law office on graduation. How is this to be achieved in a practical sense? The article does not say. It posits the problem and suggests that there are theoretical alternatives to the current system without offering answers.
To learn to practice law well is a huge undertaking. Here is crude guide:
1. Learn issue-spotting. This is analogous to a doctor learning how to diagnose maladies. If you never see what the legal issues are in a given situation, you will have no clue about what is or isn’t important in a deal or in a dispute. A do-it-yourselfer in law most often falls short here: he will fill in the form as instructed but will fail to see the traps and pitfalls along the way or will fail to spot strategic opportunities for doing something better just because he is flying blind. A law student will do better in having been trained to spot the issues in ways that academic knowledge affords. A seasoned practitioner will do all that and much more in being able to guide clients based on having been through real-world experiences involving those issues many times before. It is basically a combination of brains, foundational knowledge, and experience. Ultimately, you need all three if you are to practice law well.
2. Learn to communicate well, particularly in writing. Law is often about words, their meaning, and their impact. As a lawyer, you often need to persuade, or to reassure, or to cajole, or to intimidate, or to do whatever the occasion calls for in serving the legitimate needs of clients. If you can’t speak well, and if you can’t write well, you will be an inferior lawyer. Conversely, to be a skilled lawyer for many purposes, you need to master the art of both oral and written advocacy (I elaborate on this here: http://grellas.com/articles.html).
3. Learn to think strategically. Law can involve many complex areas. The student will have a grasp of the theoretical complexity. The inexperienced practitioner will have some sense of how that complexity works in practice. But only a partner-level lawyer will have a consistent ability to take all that complexity and be able to handle it strategically - that is, be able to see the big picture, to understand how all the component parts fit in, to identify what matters most for a given situation, and to know how to sort through it all intelligently and efficiently to help achieve a client’s goals.
A new grad in law will be at a serious disadvantage if he lacks a solid grasp of critical legal principles that are taught precisely by the case system. You won't be a great practitioner if that is all you have but you will likely be a poor one if you lack it. You will also be better for having done moot court or law review (or both) because these will help you master the art of communicating. But, even if a new grad comes in ideally equipped in all these ways, there is no bypassing the apprenticeship part of law, the learning by doing. In my experience, it takes about seven years for a new grad to grow from green lawyer into a highly efficient and strategic lawyer. That is what it means when a lawyer becomes a partner.
Can the apprenticeship part effectively be merged in with the academic part during law school? In limited ways, yes. But it can't displace the academic part without serious loss to the student. The current system of legal education is full of problems and flaws but the solution does not lie is dispensing with or severely minimizing the case system of learning legal principles. In the end, you can fault it all you like but I still say, "three cheers for Hadley v. Baxendale." In the end, this remains a foundational part of good lawyering.
For instance, you can make a case that majoring in Computer Science is a better than majoring in Math if you want to be a programmer, but you can't legally prohibit math majors from writing code.
I'd like to see alternatives to JD programs. I think that a lot of the core skills you described are certainly developed in good law schools, but they are also developed well in lots of different academic paths. For instance, suppose someone double majored in mathematics and english literature with exceptional grades, followed it up with a grad degree. Should that person be forced to go through three years of law school? If this person were allowed to pass the bar and was able to do so, should we deny him or her the right to enter the profession? Would this person be ready with a one year course of study (maybe a master's degree)? Even if it would be "better" for this person to do the full JD, is it worth the additional time and money (and deterrence)? Are we better off as a society if this person gives up on law? (People who hold JDs are probably better off, which of course has a lot to do with how rigorously the JD is enforced as barrier to entry).
There's a big difference between defending the JD as a good way to prepare for a career in law and defending the JD as the only way to enter the legal profession.
I'm going 180 on you: law school is a barrier to entry, and a screening process, but it is not an education in "lawyering" (whatever that might mean). The core curriculum (which all law schools seem to stick to like it's gospel) was interesting from an intellectual perspective, but really a waste of my time and money. Likewise, I had to learn various intricacies of divorce laws to pass the NY bar – something I hope never to care about again.
Since getting my J.D., I've practiced law in some global law firms, and I've even taught practical contract negotiations at a law school here in NYC. Every time I teach that class, a few students tell me it's the most useful thing they've learned in law school.
(Keep in mind that I basically negotiate contracts for a living. If you're in antitrust, bankruptcy, etc., your law school usefulness mileage may vary. I think that's basically the problem: there's no such thing as "lawyering"; it's too broad a category to be useful.)
All the same considerations apply: theory vs. practice, writing capability, principles vs. application, never-ending desire for more practical capabilities on the part of new grads.
But surely the ABA mandated "Socratic Method" is? I'm under the impression that it would only really make sense if law were lawful, which stare decisis aka argument from authority is valid renders ridiculous. Then you've got "hornbooks" (or so I believe they're called) which are a workaround of the fact that the Socratic method doesn't work.
The other common law jurisdictions use the case law method, but they have decent text books, not functional kludges.
On another note, why are J.D.s so long? I've read that the majority of essential legal education happens in the first year, what can in some schools be an M.L.S. (Master of Legal Studies)
Can the apprenticeship part effectively be merged in with the academic part during law school?
B.A. + M.L.S. + 1 or 2 years supervised traineeship = qualified attorney.
That's approximately one of the methods of qualifying as a solicitor/barrister in the UK.
Take another example. A 30 year old nurse gets far more practical training than an M.D. but after she masters the practicalities, it is simply an endless repetition. MDs on the other hand are trained to solve problems and in just 4-5 years of practical training are able to do that in a higher degree.
Apprenticeship has been established in the service provider's section from the beginning of time, it is hard to beat with some extra classes in the University
PS: My first comment on HN, hello to everyone, you have a great community here
The problem is that the "difficult to enter" is artificial and exists primarily as a way of ensuring high salaries of current lawyers through the law school requirement; Clifford Winston explains as much in First Thing We Do, Let's Deregulate All the Lawyers, (http://www.amazon.com/First-Thing-Lets-Deregulate-Lawyers/dp...) which is worth reading for anyone interested in the issue.
It used to be that one could "read" for the bar and hang out a shingle announcing that you're a lawyer. This didn't seem to hurt anyone except existing lawyers. People are reasonably good at figuring out who might be okay at a job and who won't be; the nominal "protection" they get in the form of law-school credentialing is not that far from the "protecting" they might get from Tony Soprano.
P.S. Solid first comment; welcome to HN.
Winston presupposes that increasing supply will decrease costs, but he fails to understand that it's not the ABA that's limiting supply. The DOJ smacked them down in the 1990s for trying to limit supply--the accredit law schools as quickly as people can open them up.
Rather, what limits supply is how many students Harvard, Yale, etc, are willing to enroll. Big firms hire almost exclusively from the top 15-20 national schools, plus the very top students at the regional schools. The limitation in supply of those people drives the firms' cost structures. And people keep bringing their business to these firms because they're afraid of losing litigation or screwing up a deal and are willing to pay for the abstract comfort of the credentials.
This article's proposals for reform don't really seem on the mark, though. As this post points out, his suggestion for expanding law-school practical clinics, and staffing them with tenured faculty rather than instructors, is pretty directly contrary to his complaints about the expense of law school, since that would only increase it: http://balkin.blogspot.com/2011/11/david-segal-on-law-school...
This was a good story, recent JD with $250k in student loans, no job, and he knows he needs to stay calm.
Incidentally this from 2nd page of googling "law school student loans" (the same google search done by hundreds of thousands of college juniors every year), buried in a sea of websites telling you how easy it is to make law school, business school or whatever your dream is, attainable/affordable.
1) The case method is a great way to teach concepts. Working with hypotheticals and seeing how rules interact is extremely useful, and something I greatly missed in my engineering education where I spent 4 years just watching some TA do derivations on the board.
2) Schools don't teach outdated law as the article seems to imply. Sure you read some old cases in the process, but some of the basic areas of the law haven't changed that much! To take the example of Hadley v. Baxendale used in the article, it was true in 1850 that damages for breach of contract are limited to those that were foreseeable by the parties, and it's still true today! When I took contracts, our book started with Hadley, but went on to describe several cases that arose in the dispute between Texaco and Pennzoil when they were both trying to acquire Getty.
3) Law school doesn't leave you any more unprepared to practice law as engineering school leaves you to practice engineering. Indeed, law school does a much better job teaching you to "think like a practicing lawyer" than engineering school does to teach you to "think like a practicing engineer." The problem is that a lot of the courses that teach you lawyering skills are elective, and people would rather take "law and social change" or something fluffy like that. At our school we have extensive clinic offerings, and my friends and I are doing everything from poking around in a Superfund site to helping defend criminals. And the professors aren't all eggheads. My tax ethics and business associations professors are partners at local law firms, my telecom and environmental law professors practiced in the field for years before coming to teach, my clinic professor was general counsel at a major corporation, etc.
Agreed. The case method would arguably address many of the problems raised in this article. The problem is not the case method itself, but what is being taught by the case method.
The college system does not teach practicality by design.
To do that would remove a great deal of profit...
Instead of raking in 4-5 years worth of tuition, they would only get 1-2 years.
Instead of hiring teachers that can't-do, they would need to find teachers that can-do.
Instead of keeping people pre-occupied and enrolled with bullshit curriculum that keeps you going nowhere and seeing-nothing, they would lose students as soon as those students decided this type of job was not for them (rarely anyone knows what they want to do at this age).
The college system is sold to us on the premises that 1) you'll be trained for the job that 2) you will most certainly be getting right after the degree is awarded. Neither of these things is true.
I've been there. It was not worth it at all. While there are a few exceptions, people mostly play on their egos with degrees and such. There is nothing quite as useless as a new college graduate that thinks he has value.
Why can't "thinking for yourself" and "figuring things out" be combined with examples from relevant legal systems rather than examples from post-feudal England?
The old cases are taught because they're still relevant to some principle. A 1600s case about a music hall burning down sounds ridiculous until you realize that "buildings burning down" is still a problem that exists today and that's the origin of the doctrine of frustration.
That's exactly how colleges sell themselves.
> The value-add for college should be in giving people the ability to think for themselves; to figure things out.
And yet they fail.
> it ultimately came down to personal passion to make the most of where you are.
Then you agree with me!
The best and most valuable experiences I had in law school, bar none, were participating my school's clinic and volunteer income tax assistance site. I graduated in 2008, and still learn something new every day about how to be a good lawyer. If that doesn't continue for the rest of my career, it's my own damn fault.
I know basic science research is important but academic law research?
Exhibit #1 (the second item under "Articles" (NSFW, depending on where you work))
http://www.cardozolawreview.com/index.php?option=com_content...
That being said, I think there is one very salient aspect to the whole law review system, which is that it engenders participation by a much broader cross-section of lawyers than is the case in other academic fields. Law reviews publish students and practitioners in addition to professors. You see articles not just about abstract theory, but the mechanics of some new tax provision. Even at big law firms some partners take the time to publish, not just articles but books. This is far better than say CS academia, where most articles are math-wankery that everyone ignores.
For better or worse, law school forces students to take responsibility for their learning. Many professors just aren't good at teaching so students often end up teaching themselves a subject. Thus, the gigantic market in study aids. This all hits home when you have to absorb tons and tons of material to take the bar exam.
Another important difference is that CS research also goes on in industry, resulting in more diversity. There is no fundamental problem underlying the whole field--for every researcher working on things you find useless for industry, there are probably several working on things which are useful.
Finally, this may be due to my university being more pragmatic than some, but most of the research going on that I've heard about is actually immediately practical. The single largest issue a ton of professors seem to be working on is parallelism and distributed computing, which is indubitably extremely important to industry right now. Of course, I could also only be seeing this because most of the professors that teach my classes or that I've talked to are affiliated with similar labs.
"Another problem he encountered: there are few incentives for law professors to excel at teaching."
As a college student I can attest that this is not just law professors. This is the case in any research-centric university.
The rest of the article reminds me of the debate surrounding Computer Science and Software Engineering. Many people feel that CS degrees do not prepare you to actually code, and that a lot of CS graduates do so without knowing how to write any good code.
If looked at in that light, is it really a problem? The specifics of how law is done might change, the deep insights and theoretical knowledge will always be useful at some level.
To frame it in the computer-science context, which I am more familiar with, if a schools pends four years teaching practical applications of Java and the specifics of the Hadoop framework, the graduates will surely have a lot more practical knowledge right as soon as they begin working. But in ten years if Java is no longer used and Hadoop was superseded by something else, all that knowledge is now useless. In contrast, knowledge of Turing Machines and automata will still be useful, if not for its practical application, for its cultural value and the ability it has to change your thinking about problems.
I think the best way to deal with the lack of practical knowledge is to combine it with actual practice. At Northeastern University, a large percentage of the students do six-month coops where you work full time for those months. It's a way to deliver the best of both worlds. Deep theoretical lecturing mixed with actual real-world work. I have yet to find a downside to it for the average student.
Learning Hadoop and Java is not the same as "learning software engineering", just the same way that learning quicksort is not the same as "learning computer science."
You're conflating learning a specific language or a tool with learning how to engineer anything more complicated than a one-file program. Software engineering is about understanding why you should care about object orientation--and when you shouldn't. It's about learning how to deliver most value for a given expenditure of time--and how to make sure that value lasts longer (i.e. maintainable code).
Amusing, because med schools are filled with professors who have never practiced. They're called PhDs, and account for a huge majority of faculty at medical schools. That's why doctors have to do residency and medical rotations.
For example, he mentions a paper entitled "What Is Wrong With Kamm's and Scanlon's Arguments Against Taurek" from The Journal of Ethics & Social Philosophy as an example of ivory-tower lawyering. But this paper is written by Tyler Doggett, a philosophy professor. He isn't even a borderline law/philosophy prof: he doesn't have a law degree (he has a philosophy degree from MIT), and he doesn't teach in a law school (he teaches in UVM's philosophy department). So it's not clear how his publishing output is relevant in any way to law school curricula.
Weirdly sloppy researching/writing. Though it does open a small window onto just how dishonest that type of "quote 'incomprehensible' academic papers to show how out of touch they are" argument often is: the people making it rarely have a good-faith interest in understanding the papers they're citing, and instead quote random things without reading them.
This is not a flame, but a serious question: Would it be possible to phrase the law and change the procedures in a way that would obviate lawyers?
In jury trial a lawyer's task is more that of show master to convince the jurors (who are neither trained in law, nor in the matter of the trial) of their client's position.
The other task is help interpreting the law, because it is not phrased in terms that the "common person" would understand.
It's not the phrasing that makes the law complex. It's the fact that the law is a mechanism through which we mediate human interaction, and the interactions of modern society are phenomenally complicated. E.g. the Sherman Antitrust Act of 1890, which is still basically "the law" in the area of antitrust, fits in just a few pages: http://www.linfo.org/sherman_txt.html
It's not dense legalese. "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." That's the gist of the Act. Yet, many lawyers make their living specializing in this law. Why? Because restraint of trade is hard to define precisely (if the Act tried to define it precisely, it would be dense legalese, like the Tax Code). Courts navigate antitrust suits largely be looking at what they've done before (consistency of result is often more important in law than getting the 'right answer', which may very well not exist). Lawyers help their clients navigate through that web of precedent.
It used to be the case, a hundred years ago, that law was unnecessarily complex. You had to plead cases in this highly stylized format, etc. That's all gone now. Courts will go to great lengths to make sense of a complaint written in crayon. What's left is a lot of necessary complexity. Look at the Federal Rules of Civil Procedure: http://www.law.cornell.edu/rules/frcp/#chapter_vii
Again, it's not dense legalese. "A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service." When law students take civil procedure, the greatest source of complexity actually ends up being complexity inherent in our federal system: choice of forum, choice of law, etc. Under what circumstances can a California court exert jurisdiction over an Alabama resident? When does a federal court have to apply state law? Which state's law?
This goes to the heart of what education should be about. Foundations and theory, or vocational training.