Here’s another confession: I use very little of the substantive stuff I learned in law school in my current practice. Not because I skipped the bar exam classes, but because the real practice of law involves so many things that don’t fit neatly into the pages of a hornbook. There’s no good way to read about how to tell a client he’s facing life in prison or that, in spite of what the law on the books might say, he’s not going to prevail on appeal.
That split, between what you learn in law school and what you need to know to actually practice law, is getting renewed attention these days, partly due to the fact that going to law school is so fucking expensive. In spite of the tens of thousands of dollars of debt freshly minted lawyers run up, more and more firms have to spend valuable time (and money) training even the best and brightest to actually practice law, rather than merely think like a lawyer. Is it time for legal education to change?
Stanley Fish, who teaches some of the more esoteric stuff at Yale, makes a spirited defense of legal education as something more than a trade school here. For Fish, it’s about being able to work for a client with knowledge of the broader context of things:
One can, however, make the case that the practice of law is more than a technical/strategic exercise in which doctrines, precedents, rules and tests are marshaled in the service of a client’s cause. The marshaling takes place within an enterprise that is purposive. That is, law is more than an aggregation of discrete tactics and procedures; it is an enterprise informed by a vision of how the state can and cannot employ the legalized violence of which it is the sole proprietor. That vision will come into view in the wake of a set of inquiries. What obligations do citizens owe one another? How far can the state go in enforcing those obligations? What restrictions on what the state can do to (and for) its citizens should be in place? How do legal cultures differ with respect to these issues?On a philosophical level, I agree with Fish. He’s made similar arguments about the demise of liberal arts education in college, and perhaps I’m biased when it comes to such arguments. The focus of my undergrad education – history, philosophy, political science – was not exactly designed to widen my employment prospects (at the time, I didn’t know historians could get millions lobbying for . . . er, I mean, “consulting” for financial institutions). And, as I said, the electives I took in law school were much more about intellectual stimulation than cramming rules into my brain. I’d like to think all that stuff at least informs the way I do may daily work. Besides, I’m a big fan of learning for the sake of it.
But on a practical level, I think he oversimplifies things. Yes, a legal education should include some of the more longhaired stuff Fish champions. That doesn’t mean it can’t also address some of the more practical aspects of being a lawyer. It’s not an either/or proposition. Or, at least, it shouldn’t be.
Expanded clinical programs have addressed those issues somewhat over the years, but they’re not big enough at most schools to allow all students to participate. Something more radical is necessary, probably something modeled on the kind of internships doctors in training go through. Whether that would be a replacement for law school’s third year or some sort of compliment to it, I don’t know. What I do know is that while we don’t want law schools turning into simple trade schools, neither do we want them to become so obsessed with theory and the esoteric that they don’t really prepare students to be lawyers.
So, end the end, is law school worthless? I don’t think so. I can be improved, though. And I will say this to anyone weighing whether to go to law school: For the love of your God, don’t do it unless you really want to be a lawyer! It’s too damned expensive (and too hard, frankly) to be a way station on the road to somewhere else.
I think it is a crucible that does change the way that you think and assess a situation. It doesn't make you a lawyer but gives you the tools to be one. I know a lot of lawyers with zero social skills and a complete inability to negotiate or emotionally distance themselves. But they can think like a lawyer.ReplyDelete