It’s not unusual to see a major newspaper article discussing the many failings of law schools. They appear every couple months or so. These days, most of what you read is about how law schools manipulate salary and rankings data to encourage students to enroll and take on the massive debt necessary to graduate. And what’s the reward at the end of 3 years? You’ve got an awfully lot of heavily indebted people working 20 hours per week as contract attorneys paid $25 – $30/hour. We get it, it’s a racket. Poor Loyola2L.
But yesterday, the New York Times ran an article with a little bit of a different take on the law school experience, which got me thinking again about some things that occasionally cross my mind — though usually not for long (I’ve given myself way too much to do). The article was titled, “What They Don’t Teach Law Students: Lawyering.” Here’s a quote that captures the essence of the article:
“Law school has a kind of intellectual inferiority complex, and it’s built into the idea of law school itself,” says W. Bradley Wendel of the Cornell University Law School, a professor who has written about landing a law school teaching job. “People who teach at law school are part of a profession and part of a university. So we’re always worried that other parts of the academy are going to look down on us and say: ‘You’re just a trade school, like those schools that advertise on late-night TV. You don’t write dissertations. You don’t write articles that nobody reads.’ And the response of law school professors is to say: ‘That’s not true. We do all of that. We’re scholars, just like you.’ ”
This trade-school anxiety can be traced back to the mid-19th century, when legal training was mostly technical and often taught in rented rooms that were unattached to institutions of higher education.
A lawyer named Christopher Langdell changed that when he was appointed dean of the Harvard Law School in 1870 and began to rebrand legal education. Mr. Langdell introduced “case method,” which is the short answer to the question “What does law school teach you if not how to be a lawyer?” This approach cultivates a student’s capacity to reason and all but ignores the particulars of practice. Consider, for instance, Contracts, a first-year staple. It is one of many that originated in the Langdell era and endures today. In it, students will typically encounter such classics as Hadley v. Baxendale, an 1854 dispute about financial damages caused by the late delivery of a crankshaft to a British miller.
. . .
Defenders of the status quo say that law school is the wrong place to teach legal practice because law is divided into countless niches and that mastering any of them can take years. This sort of instruction, they say, can be taught only in the context of an apprenticeship. And if newcomers in medicine, finance and other fields are trained, in large part, by their employers, why shouldn’t the same be true in law? (emphasis added)
I want to take a minute and explain to you why, despite its many faults, I still give at least two cheers for law school.
My Personal Journey to and Through Law School
There are two types of students who enter law school. Those who have wanted to be lawyers all their life, and those who kind of just fall into it because they don’t know what else to do with their life. I’m a proud member of the second group.
I have no other lawyers in my family. Prior to enrolling in law school, I had never encoutered the legal system, even in the most indirect way. I think I’d received one traffic ticket, for doing 8 miles over (going downhill) in northern Montana. I’d never encountered the world of pop culture law via the legal drama (outside of watching old Perry Mason re-runs with my parents).
I made the decision to enter law school on a whim in November 2004, three weeks before the last qualifying LSAT test on a night I happened to be particularly disenchanted with my life as a doctoral student studying Political Geography at the University of Iowa. At the time, I had two reasons for choosing law school over a Ph.D in political science (my second contemplated career alternative): (1) no dissertation was required to obtain a doctoral degree from a law school; and (2) my LDS Bishop, who I greatly admired, was a Dean at the University of Iowa Law School. As time went on, I manufactured more (as so many of us do).
Seven years later, here I am — a profoundly different person and mostly happy for my ill-considered choice.
I came out of law school thinking differently than I did when I went in. I learned to appreciate the significance of fine distinctions. I respond much more favorably to some technical arguments, because I realize that there can be substance behind those technicalities. I also learned to reject technical arguments when they’re rooted in nothing more than technicalities. I’m more cautious about what I say and how I say it. I write more clearly and speak more persuasively (at least I think I do). I have an insider’s understanding about a legal system that is so terrifying to so many. And I really can help people through difficult times.
But I’ll also admit that it hasn’t been all good. I’m much more cynical than I used to be. Always at bit pessimistic by nature, I’ve become even more so. I’m more critical of positions and can be downright dismissive of what I see as poorly articulated arguments. I still don’t know when to use “who” and when to use “whom.” I sometimes think in legalese. I often feel I have little in common with people who are not lawyers. Some days it seems like I’m constantly tempted to point out faults and tear people down. And I can persuasively rationalize being used as a tool by someone who I think isn’t on the right side of a fight.
All this to say that law school is every bit the transformative experience it’s made out to be. Or, it certainly was in my case. It’s a transformation that I’m not sure you would completely undergo if you just jumped right into a legal apprenticeship and started to practice law.
Teaching Students to Think Like Lawyers Should
In other words, I’m one that thinks there really is something to this “law school is to teach you to think like a lawyer” stuff. Or, maybe I should rephrase it. Perhaps law school is about learning to think like a lawyer should.
When you strip away everything else, the question this New York Times article raises is whether there’s really a place for law school at all. If budding attorneys can’t effectively be taught to practice law while in law school, do they really need a mandatory three years of school to be taught how to reason a certain way?
Well, maybe not three years; perhaps just two. And a bit more practical instruction probably wouldn’t hurt. Law school CSOs could *definitely* be more helpful in helping students find meaningful employment. Law firms could improve the whole process by making hiring decisions on more than first semester grades. Maybe law reviews could actually publish articles that are helpful to members of the bar. And occasionally law schools might, with subtlety, suggest that these days it’s statutes and regulations, and not case law, that, by and large, rules the legal world.
But all these legitimate complaints aside, I still give a hearty two cheers for law school. People need advice from attorneys who can relate to them but who have a perspective and view that makes it so they don’t think like them. The law itself needs attorneys who think and care deeply about the direction it’s moving, independent of the particular case(s) at hand. Having attorneys with perspective on how the law’s treatment of legal problems has evolved over the past 200, 500, or even 1,000, years gives depth to the law and helps attorneys understand the significance of even the most individualized and unique case. Those years spent in law school should be about more than just learning how to draft a complaint, write discovery requests, and conduct an intake interview. Law school should be more than a trade school; it should be about preparing young attorneys with the tools to make their practice about more than just the money and endless drudgery, but also about making the law and the legal system better.
It’s significant to note that, 150 years ago, before the ascension of law schools, the American legal landscape was ruled by the common law, which was then largely a collection of hyper-technical requirements and “gotcha” procedural rules, the knowledge of which was passed down from master to apprentice practitioners. That’s not where we are anymore. And I can’t help but think that theoretical law school education played just a little part in the direction we’ve gone. I’ll cheer for that.