Wednesday, January 01, 2014
Legal Education and the University
Bruce Ackerman's 9/9/13 post "Three Years in Law School are Barely Enough! included this comment of mine (late in the thread):
Before this post goes into the archives, take a look at Anders Walker's "Bramble Bush Revisited: Karl Llewellyn, The Great Depression, And The First Law School Crisis, 1929-1939" for some history that may be relevant to the recent Great Recession and current day issues on law school reform. [A link to the article is available at Larry Solum's Legal Theory Blog.]
At page 25 reference is made to Llewellyn's 1936 call to make "the law a cultural study" adding courses in "Roman Law, Jurisprudence, and the still unfamiliar fields of Constitutional Law," and "Administrative Law." [Footnotes 197 and 198] Query: was Constitutional Law an unfamiliar field back in 1936? Administrative Law I can understand.
It is worth pointing out that Llewellyn stressed the importance of the legal profession and education to address the public good.
# posted by Blogger Shag from Brookline : 7:09 AM
There have been other posts on law schools at this Blog recently with lengthy threads.
James Maxeiner's "Educating Lawyers Now and then - An Essay Comparing the 2007 and 1914 Carnegie Foundations Reports on Legal Education" may be helpful on the point raised in this post.
My LLB in 1954 was later "converted" to a JD which served to bolster a law school grad closed to a PhD in prestige.
Back in my law school days (1951-54), legal history may have been fluff. But in my semi-retirement (1998 to date) from the practice of law, I have surfed the many legal blogs via the Internet. This Blog and Larry Solum's Legal Theory Blog have been favorites over the years. And then along came Mary Dudziak's Legal History Blog, which made me realize how much I had missed because in my day legal history was a fluff course. "Regular history" is something we consider regularly and routinely as current events unfold. So why shouldn't legal history for those in the legal profession, even though at times it overlaps with "regular history." It is history of all kinds that helps us to evolve and progress, including to make this a more perfect union rather than trap us in the past.
And let me shout out a thanks to Marty Lederman on his thorough posts on Hobby Lobby and related cases. Agree or disagree with Marty, he is to be applauded for going so deeply into the subject matter.
Speaking of evolving (as I did), take a peek at Paul Krugman's NYTimes blog post of 1/2/14 "Tribalism, Biology, and Macroeconomics" with comments on a recent Pew poll showing a significant decline in the belief of Republicans in evolution, which reflects history.
This seems a rather rose colored take -- scholar-heroes nobly fighting for a broad liberal arts education.
It is my understanding that classism and anti-semitism were significant drivers of the ABA and AALS is setting up the modern bar admission requirements.
Brad's anti-semitisism "understanding" needs some evidence. Up until the early 1940s there were many law schools that did not have college requirements with graduates passing bar exams and becoming lawyers. Back in 1951 when I started law school in the Boston area, of the six (6) law schools only Harvard required a college degree, the others only two years of college. Perhaps Brad is thinking of "quotas" at some top tier law schools during the 1920s and 1930s. But there were plenty of law schools back then accepting anyone with the tuition. There may have concern with the legal profession becoming overcrowded; these would have been the concerns of the practicing bars at a time when income levels of an attorney were not that high. Call this elitism, or classicism but not anti-semitisim at least since WW II ended with the GI Bill available to many.
While I certainly appreciate your first hand perspective from the 40s and 50s, the law school requirement was a turn of the century issue, and the subsequent crackdown on part-time and priority law schools was a phenomenon of 10s and 20s. The crackdowns on these other options were intended to funnel people into a few elite schools, as you say to keep the profession small, but also to keep it limited to the WASPs.
I said nothing about an undergraduate requirement, so I'm not sure why you want off on that tangent.
Though anti-semitism in the legal field and throughout society was by no means eliminated, it was in decline after the war.
My parents began working on civil rights issues in grad school in Berkeley in late 50's. They were friends of Ann Ginger. Later they were staff and board members of the Philadelphia and PA ACLU. During Vietnam my mother ran a lawyers' committee on the rights of enlisted men. There were movement lawyers and retired JAGs who wanted to kill each other; she ran a tight ship.
The Philadelphia lawyers she worked with (a few of them fitting that term in every way) told her she could pass the bar whenever she wanted.
Neither of my parents went to law school.
Last year I did a little job for a corporate lawyer, some minor plaster repair in her 3 story brownstone. She's a friend of a friend. I mentioned my legal theory hobby. She laughed. "Lawyers don't read that stuff. Lawyers are tradespeople!"
The lawyer and our mutual friend are both Irish. Our mutual friend began working in hospitals at 16. In her early 20's at some point (not sure when) she was given a piece of paper that said she was a nurse. She manages a department in a major hospital in NY. She doesn't have a college degree.
California is one of 5 states where law school is not necessary. They still allow Reading Law.
You know about the California bar exam?
It is not uncommon to see new Constitutional ground broken by some little known public defender trying to save one his more hapless clients. I bet some of them relied in part on some Con Law class in their past. What is 'necessary' or 'relevant' to a practicing lawyer is not limited to looking up settled law, and think how much worse off we all might be had such PD's not changed the law as they did.
Brian Leiter was "Joseph D. Jamail Centennial Chair in Law" at UT Austin.
Here's Joe Jamail in action.
I've read ridiculous articles on this blog, and it's the best legal blog I know. Mark Tushnet on why abstract art is not covered by free speech; would it be constitutional to ban dancing? Middling responses to fascist arguments from Posner and Vermeule. Levinson on why it's all the constitution's fault. I'm amazed that Leiter's book on religion is even news at all, but here I read pained, earnest tripe.
You want to strengthen the humanist scholarship of law? Read Shakespeare, get a degree in history or English lit, or dig ditches for a few years, then go to trade school and pass the bar.
Jamail: "Lawyers... are the rule of law."
Ambulance chasers are the rule of law. Mob lawyers are the rule of law. A friend's neighbor works in criminal defense, federal, drugs and guns. He's a schmuck in a three piece suit. He'll tell anyone who asks that he's "at the forefront of the defense of your civil liberties", and he is. He's an advocate, not a philosopher.
The Legal History Blog's weekly Roundup (1/4/14) links to this post of Prof. Graber. A link is also provided to The Chronicle of Higher Education's article on the AALS views on legal education, which requires subscription. Perhaps Prob. Graber will post on this.
Mark, law was one of the canonical four disciplines of universities at their founding! The distinctive anti-credentialism of 19th century America shouldn't obscure that. The connection between legal education and universities isn't some recent anomaly; it's the normal condition of both.
Professionalization of trades was common in that period of history. See medicine. What you are really asking is whether lawyering is nothing but the behavior of paralegals. A great deal of it may be. But this discussion seems too related to asking whether doctoring should be treated as nursing, or, conversely, whether alternative healing should be professionalized to weed out the pushers of elixir.
Ultimately, it seems better to advocate this. Let's have two degrees. One for being a super paralegal -- a person trained in all the forms and behaviors of the legal craft. And one trained, in addition, for being the. governors and judges of the system (bird's eye view). Call the latter barristers. Only judges can be a barrister. If you have an argument for a new right or for law changing, you need a barrister. Barristers make different kinds of arguments and use different kinds of tools.
The hairdressing-school analogy is a straw dog and reflects a profound misunderstanding of what legal skills training is all about. Maybe I'm wrong, but I assume that hairdressing can be taught and learned in a fairly rote, cookbook manner. Yet much of what lawyers do -- things like making judgments and counseling clients under conditions of factual uncertainty, developing a case theory to fit the facts and then creatively investigating and marshaling facts to fit the case theory, etc. -- cannot. Effective lawyer training is intellectually rich and multidisciplinary, and should not be parodied as akin to hairdresser training.
"Let's have two degrees. One for being a super paralegal -- a person trained in all the forms and behaviors of the legal craft. And one trained, in addition, for being the. governors and judges of the system (bird's eye view)."
...governors and judges of the system
"My view of the Supreme Court is sort of like the husband in the French farce... He's always the last to know."
The real question is whom we think has primacy, lawyers or judges. Balkin would seem to agree with Joe Jamail.
Judges like Philosophers take themselves very seriously. They need for theory to precede practice, to see themselves as prime movers in the image of the Prime Mover.
Historians know that theory is codification of practice, and follows it. Democracy is a model of practice; as theory its a mess. There've been few brilliant scholars on the Supreme Court; isn't it also common to point out that's a good thing!?
Law is a process. Laws change as language changes; language changes as people change.
Maybe you should divide up legal studies between legal practice and legal history. Never mind Rawls. He's a waste of time. We don't need more theories of justice, but we do need more histories of it. We don't need to be told what to think; we need to study the record of what we used to think.
Assuming there will be a vigorous and thorough debate on the future of legal education, shouldn't the interests of the public be included in the debate? When someone seeks the services of an attorney who has passed a state's bar requirements, what should he/she expect of the attorney's qualifications and competence? Should the public expect that the attorney will be competent to address his/her legal problems at reasonable charges for such services? Corporations and other deep pocket clients don't seem to have a problem engaging competent attorneys. But what about individuals without deep pockets? Shouldn't the education provided by law schools prepare its students/graduates not only to pass the bar but also to be competent in providing legal services to ordinary folk at reasonable prices? Prof. Ackerman's post at this Blog may come close to addressing this, but much more is needed. The "Big Law" model of training attorneys AFTER law school does not trickle down to the general public relying on solos, small partnerships, legal clinics, public defenders, etc.
So the debate should not be limited to potential and actual law students, law schools and their faculties. There is a major public interest in the legal profession. Perhaps the medical school model (or a variation) may be appropriate for producing competent lawyers. Yes, there are serious financial issues to be addressed in the debate that impact students and law schools and their faculties; but the public seeking legal services must be able to afford them. The "Big Law" model prices many of the public out of competent delivery of legal services at reasonable prices.
So who will speak for the public interest?
Over at VC a head's up and link are provided for Jordan Furlong's "You say you want a revolution?" Here's the URL for those who prefer cutting and pasting:
This is indeed a "WOW!" post for those in the legal profession.
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