The start of the school year is upon us. You can tell from the firestorm of written commentary in the legal press and blawgosphere about the function, fitness and future of legal education.
Fanning the flames hardest is Brent Evan Newton, an adjunct professor at the Georgetown University Law Center, who has written an article with a title that (almost literally) says it all: “Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy.” Newton’s piece does not, how you say, adhere to the traditional measured tones of academic discourse. Some excerpts, courtesy of the ABA Journal:
These “impractical professors whose chief mission is to produce theoretical legal scholarship” feel indifferent towards—and sometimes outright disdain for—practicing lawyers and faculty members with a practical bent, he writes…. “Especially at law schools in the upper echelons of the U.S. News & World Report rankings, the core of the faculties seem indifferent or even hostile to the concept of law school as a professional school with the primary mission of producing competent practitioners.
But Newton’s article is just gasoline poured over an already robust conflagration. Here’s what else the last two months have produced:
- The New York Times revealed in June that several US law schools have retroactively inflated their students’ grades, ostensibly to “help these students find work in a difficult economy,” but perhaps equally if not more so to protect their own rankings and reputation. (Personally, it’s not clear to me how a school’s reputation is enhanced by pumping up grades the way a third-rate used-car dealership rolls back odometers.)
- The University of Michigan’s law school has started including job offers from Indian legal process outsourcing companies on its career page. Fairly or not, Above The Law does kind of capture the zeitgeist of this one: “If you go to a top ten law school and end up having to go to India to find work, your law school … should forgive all your debts and furnish you with a public apology.”
- While demonstrating the absurdity of the US News law school rankings — Stanford could have perfect admissions standards and still not attain the #1 ranking unless it spent another $350 million on salaries and textbooks — University of Indiana law professor William Henderson delivers a hard truth: “I don’t think even one law school in the US News Tier 1 has reached even 10% of its potential to educate and solve problems. Too many one-professor silos. Too much ego.”
These are the signs of a legal education system in the process of breaking down, a subject I canvassed in a recent column for The Lawyers Weekly newspaper: “Law school and the risk of irrelevance.” That column in turn prompted a dynamic discussion of the subject at Legal OnRamp started by Stephanie West Allen, who posed the key question facing those of us with an interest in the future of the profession: “What is the role of law school?” Many insightful comments followed, but I was especially struck by an excellent observation by Michael Stern, a partner at Cooley Godward:
Law school is the worst of both worlds–a lousy trade school and a lousy graduate school. Law school does not prepare practitioners to practice, and lacks intellectual rigor (it’s remarkable that a discipline founded on the interpretation of texts pays virtually no formal attention to hermeneutics and only outsiders like Stanley Fish, with his background as an English professor, ever write about “theory”; few law schools offer any courses providing any historical or sociological context for the evolving role of common law in capitalist society). Three years of reading cases is the equivalent of spending three years in an English Ph.D. program doing nothing more than reading random sonnets as ahistorically as a new critic might have done in the 1950s. And the idea that graduate students are the gatekeepers for the field’s professional journals is really nuts–proof of the vacuity of most legal “scholarship.”
This is an important point. When we criticize law schools for failing to teach practical skills, we’re essentially criticizing horses for not giving milk — it’s not what they’re set up to do. Absolutely, there ought to be practice and business training for new lawyers, but it’s pretty clear at this point that the schools aren’t going to provide it. So we might as well take the stool away from underneath the horse and go look for fresh pastures, so to speak — novel and better ways for lawyers (new and not-so-new) to learn skills that serve clients (I recommend Solo Practice University in this regard, by the way).
But when we say that law schools don’t teach practice, we unconsciously assume that what they do teach is theory — and I think Michael’s observation is correct, that that isn’t actually what most of them teach at all. Law schools do provide a grounding in jurisprudence and some legal theory, but that’s mostly in first year — from then on, it’s Basics of Tax and Intro to Family Law and Criminal Procedure 101 and so forth. This isn’t theory. When you take a class in Evidence, you’re not learning the philosophical underpinnings of what can and can’t be proved. You’re learning about the very real rules of evidence that are applied in real courtrooms to real people with real consequences. You can quibble with the effectiveness of an Evidence course in terms of its success at cross-examination training — but you can’t call it theory.
Michael asserts that law is a lousy graduate school — but I think we can go farther and state that in fact, law is not a graduate program at all. We call it “graduate school” because in most cases, you need to have an undergraduate degree to get in. But the term “graduate school” also suggests academic rigour, extensive scholarship, and detailed research into a subject’s fundamental nature, usually with a major thesis or dissertation requirement. That’s not law school. Invariably, those who take a graduate degree in a particular subject have already achieved an undergraduate degree in the same subject. That’s not law school, either — law school is our first exposure to the subject. Law school is a Bachelor’s degree.
Here in Canada, at least, we’ve always recognized this. Most Canadian law degrees are LL.B.s — Bachelors of Laws — even though you usually need to have an undergrad degree before you can enroll. American schools, by contrast, grant J.D.s, and I’ve never understood how what is basically the same degree is given the title “Juris Doctor” — in no way does a law school degree deserve the comparison to a doctoral program. But “J.D.” sounds great, so much so that several Canadian schools (including my alma mater, unfortunately) have switched the name of their degree from an LL.B. to a J.D. without making any substantive changes to the program.
This reminds me: during my own law school tenure, many of us would hang out at the Grad House lounge. At one point, the real grad students — the Masters and Doctoral candidates — complained about all these “baccalaureates” coming into the graduates’ building and taking all the good seats. I dismissed it at the time as petty rivalry, but I now wonder whether they didn’t have a point. When you get right down to it, your average law school curriculum is basically half Intro to Law and half Bar Exam Prep. You can call that a lot of things, but you can’t call it a “graduate program” without doing some serious damage to the generally accepted meaning of the phrase.
I think it would be great to see the current J.D. or LL.B. degree reconstituted as an undergraduate degree, the same as a Bachelor of Arts or Commerce. Four years of undergraduate work would be enough to provide a healthy grounding in legal theory, legal history, aspects of justice, all the things that law schools now teach, in a mixture with Torts and Contracts and Business Associations and so forth. In fact, a four-year Law undergrad would be a terrific grounding for any number of disciplines — don’t we always tell law students that a law degree opens up vast new career horizons to them? Better yet, students in other fields could minor in Law, or even take a handful of law electives. Think of the boost that would give to legal literacy among university graduates of all kinds, and to public legal education as a result.
How would we train practicing lawyers, then? Well, schools could create an MLP degree, a Masters of Legal Practice to mirror the Masters of Business Administration. You’d require an undergraduate degree in law to ensure the student had thoroughly learned the theory and the basics, to which you would add business skills, professional responsibility training, client focus, project management, and the other hallmarks of a competent practitioner. Or the local Bar could set up a training program, perhaps as a joint venture with the private sector, perhaps funded directly from the dues of licensed members. There would be separate streams for corporate, consumer, litigation, and single-client (i.e, government and corporate department) practice, all structured in consultation with state bars and courts and accreditation authorities. This is pretty much how legal education proceeds in the UK, and they seem to have done pretty well with it.
It’s a fair question whether we could handle such a radical recalibration of the teaching of law — it may well be that we’ve gone too far and too long down the current road to go back and try something new. (Although the University of Western Ontario, following the lead of the Carnegie and Best Practices Reports for legal education reform, is hosting a Canadian Clinical Legal Education conference next month). But at the same time, it looks increasingly as if some kind of radical treatment will be prescribed for legal education sooner or later. The awkward, neither-fish-nor-fowl nature into which law schools have evolved just isn’t sustainable in a legal marketplace where everything else is now subject to intense re-evaluation.