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; use the jargon and maybe to think a little bit more about what a legal issue is. But when does this stop and legal training begin?

Lawyers are powerful. They can 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 when you arrive on the job. We will provide resources for you to learn the how to do it.” That’s well-meaning and great and all, but that really shouldn’t be how it works. Isn’t the point of law school to teach students how to do legal work?

Perhaps that is what most people believe the purpose of law school to be, to train lawyers. The functional reality is that law school generally serves a far 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 their 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 isn’t supposed to be an extended job application, it’s supposed to train lawyers.

This isn’t to say learning legal doctrine, history, and theory isn’t important; creative minds often 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 – probably more important – that she actually learn how to paint. Lawyers practice law, they do not 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 and seminars 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 offers more classes that treat interpersonal experiential education as secondary to absorption of academic transcendental nonsense.

How can we train lawyers to be powerful advocates for a better society when law school does not prepare them for actual legal 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? There are problems in each prong.

Most students seek employment in large firms, where the pawnbrokers do not seem all that concerned with actual legal skills. They care more for students who can work the grind, and demonstrate their ability to do so by grinding through 1L year with good grades on examinations. Students, in turn, largely devalue practical legal education.

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 plenty of 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.