Reforming legal education

Sandy Levinson

The New York Times has an editorial in tomorrow's (Saturday, Nov. 26) paper on reforming legal education. The key sentences, I think, are the following:

In American law schools, the choice is not between teaching legal theory or practice; the task is to teach useful legal ideas and skills in more effective ways. The case netgid has been the foundation of legal education for 140 years. Its premise was that students would learn legal reasoning by studying appellate rulings. That approach treated law as a form of science and as a source of truth.
That vision was dated by the 1920s. It was a relic by the 1960s. Law is now regarded as a means rather than an end, a tool for solving problems.

There is, of course, much truth in this critique. But the problem that the Times doesn't really address--how could it?--is what counts as "legal reasoning" at all. If law is simply "a means rather than an end, a tool for solving problems," then why not encourage students to attend the Kennedy or Johnson schools? What, indeed, is the "value added" of legal education in terms of problem solving? Certainly, anyone who has a professional duty to teach the work product of the current majority of the United States Supreme Court doesn't see anything close to a "problem solving" temperament, and the endless casecrunching (of both sides) seems to suggest that appellate rulings are indeed "a source of truth." I wonder if the Times editorial writer would be satisfied if, say, Judge Richard Posner and Justice Steven Breyer, the leading "pragmatists" on the bench, were put in charge of re-designing the curriculum, together with practicing lawyers, like, say, Brian Stevenson and Steven Bright, leading anti-capital punishment lawyers of this generation (who might enlist, say, my colleague Jordan Steiker, who helps to run a capital punishment clinic at the University of Texas Law School that has had notable success).

I really don't mean to be snarky. The Times editorial raises an important point that has been made at least since 1897, with Holmes's speech on The Path of the Law. But it is notably lacking in details (which one really can't expect from a short editorial). And it might be worth pointing out that the three law schools I'm most familiar with, Harvard, Yale, and the University of Texas, all have many clinics devoted to doing exactly what the Times says needs to be done.

My own suggestion is that the monopoly on access to becoming a lawyer held by the ABA and law schools shold be broken and that one should be able to get a certificate in several basic areas of legal practice, e.g., uncontested divorces, simple wills, basic landlord-tenant, without having to invest in three years of legal education that will indeed be largely irrelevant. Milton Friedman had much to say about such issues.
Posted 11:49 PM by Sandy Levinson [link]