Friday, November 25, 2011

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.


A quick comment.

I went to Harvard Law School.

For fun, I am taking a Business Law class at a local community college that focuses mostly on contracts.

In my opinion, the community college class is actually much more efficient at transmitting knowledge than my contracts class at Harvard. The professor is a retired lawyer, and is constantly illustrating concepts with reference to cases he himself took on. The textbook does not revolve around cases; rather, cases supplement the concepts explained in the textbook.

I think that the so-called Socratic method which revolves around cases is simply inefficient. It makes concepts that actually are not that difficult seem more mysterious than they really are.

One reform would be to simply teach the basic curriculum in a more efficient manner. Then introductory courses would have time for a practical component. For example, then there would be time for the first part of a course on contracts to focus on substance while the second part focused on practice. Then when a student graduated, they would know more about how to actually draft and litigate a contract than they end up typically having now. It is great knowing the substance of contract law. But it takes that knowledge to another level entirely to feel more confident applying that knowledge.

I don't think legal education is as bad as some make it out to be. But I am certain it could be improved. I think the Socratic method is just too slow. Especially in a world where the quantity and complexity of law has vastly increased. By transmitting substantive ideas faster, introductory courses would be able to include a practical component.

The justification for the Socrative Method is often to teach students to think like a lawyer. But what better way to teach someone to think like a lawyer than adding a small practical component to the introductory curriculum? There is no need to slow down the teaching of the basic substance of the law so much by making it also all about how to think like a lawyer. That would better done in the practical component of a class anyway.

I completely agree with Mr. Welker about the need to teach the practice of law to a far greater degree. For example, our law school had three property classes, one of which taught the property rights of slaveholders for over a week and the other asked the rhetorical question who owned the moon in its final. None of them actually taught the practice of property law as I had to learn it after graduating.

I would take this proposal one step further and make law a five year undergraduate degree. There is absolutely no reason to obtain an undergraduate degree before even starting the study of law.

Finally, I am pleased to agree with Sandy's rather libertarian concluding proposal to break the ABA's monopoly on a legal education.

How about a certification program for defending OUI cases? It is difficult imagining that one would go through the travails and expense of college and law school only to end up "specializing" in OUI cases. So let's break up that monopoly. I'll drink to that! But expect these OUI specialists to complain just as law school faculty members for the most part in lock step complain about complaints of inadequate law school training of students for the practice of law. The theme of such faculty complaints boils down to "Don't tread on me."

You leave out one part of the "monopoly" that would have to be addressed. And it is one that is left out of 99% of the conversations about reform of law schools and the practice of law:

the State Bars.

They hold the keys to the licenses to practice law. It's not just about the ABA and law schools. The State Bars determine what is required of someone before they can do all the things you list in the last paragraph.

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