By Scott Burris
I am going to take a slight detour from health law to talk about legal education. This week the Times was all over a story about the need to drastically reform law school right now, and in the classic panic mode, one particular model was being embraced with the same unmixed faith with which a drowning person embraces a life preserver: cutting law school to two years. This was a main suggestion of the poster boy of reform, Brian Tamanaha. I liked his book as a call to arms and expose. I learned, for example, that I was employed by one of the few schools that did not run up faculty salaries. What I didn’t like is the focus on cost: there’s probably a lot more wrong with law school than the price tag, and, in the absence of evidence or even a serious theory, I don’t see how shortening law school would solve its problems.
Brian talks a lot about cost and time spent in school, and much of this discussion seems to me to assume that law school is mainly about training people to be lawyers within a fairly traditional conception of what the proper training for a lawyer should be. He recounts disagreements, repeated many times over a century, between a “trade school” and an “academic” model. In the former, students learn the basic skills of research and writing (and we’d add nowadays things like interviewing and counseling and trial practice), while in the latter there is also some sort of additional training, or an approach to learning, that entails getting a broader understanding of the legal system.
I have attended one law school, an elite school, and taught at another, one of the “good value” schools he mentions. I am not entirely sure of the connection between what I have seen in these two settings and either of these models. I am even less sure that either of these models reflects a very thoughtful (or accurate) view of what excellent training for a career in law would be.
I will concede that I don’t think a curriculum and pedagogy aimed at creating law professor/scholars meets society’s needs. There is probably something to the idea that engaged scholars of law bring something positive to the enterprise of law training, or could, but as an empirical claim that needs a huge amount of specification and evaluation. So let’s just focus on the trade school issue, by which I mean, ask ourselves what a law student needs to learn to go out in the world and use a law degree in practice or some other rewarding and socially useful way.
The key unexamined claim is that training to be a lawyer today requires pretty much what it has always required: learn how to find and interpret the law; learn how to express that information and interpretation in a variety of written and oral formats (memos, briefs, opinion letters, oral arguments); and learn how to move a matter through the system (procedure). That was the original stuff. In the past thirty years, law schools have put more work into classes, clinics and experiences that meet a few more needs: learn how to work on one’s feet; learn how to glean information from a client; learn how to negotiate; learn how to behave ethically. The idea that this is the main content of the trade school part of law is clear, in Brian’s writing, in his repeated suggestion that a better-value law school would use far more practitioners and retired practitioners in instruction. It is clear in the discussion of why legal education in law school can be taken care of with two years of classes followed by on-the-job training.
I don’t think anyone would take anything off this list. They might add some other things I have missed. But then, it seems to me, people who argue that three years of law school are too many have a lot of explaining to do. It may be that the third year as currently constructed is wasted, but that would be because our curricula do not systematically and thoroughly train students in this substantial set of basic legal skills. I personally have not found very many students who have mastered research, interpretation and writing after two years, but even if that can be done in two for most, there remain plenty of other skills that could be learned in the third year, and could presumably be learned more reliably and consistently (speaking of the entire population of students) in a school setting than in practice.
Take another look at the list, because, in my view, it is grossly inadequate and even with new skill courses, antiquated. It is a list that would not have seemed odd to a law teacher or lawyer in 1920. It assumes either that there is nothing outside this body of trade skill that the lawyer needs to do her job properly (or at least start off in it), or that anything else needed will already have been learned in college or prior life, or that it will somehow be picked up along the way. Do we think lawyers will not do a better job with sufficient training in history and sociology to understand how social systems work and change? Isn’t a fairly sophisticated grasp of psychology, and particularly the array of cognitive biases we typically exhibit, essential not only for dealing effectively with clients and antagonists, but even for competently assessing a matter? Why do we think that teaching abstract analysis (albeit indirectly and ineffectively) is essential stuff for law school, but teaching how the brain really processes information, norms and values is not? Don’t most lawyers need some basic non-legal skills, like how to read a balance sheet; how to evaluate scientific evidence for credibility and strength of causal inference; how to deploy cognitive and behavioral psychology in daily practice; how common medical technologies work; how to conduct basic economic operations like discounting; how to deal with the media; how to use computer programs to analyze information, including legal information?
That’s just a list off the top of my head. If we actually made a systematic research effort to figure out the skills and capacities used by law grads, there’s likely be a different (but no shorter) list of things beyond the traditional trade school curriculum. If we are deciding legal education needs to be reformed, why, other than because we always have, would we return to the model of education of a bygone century? Why would we pretend that the huge explosion of social and scientific knowledge of the past 100 years never happened? Why would we train lawyers to work alongside Bartleby the Scrivener?
And if we go the other way, and ask what a modern professional school for legal practitioners really needs to cover, would we imagine that dumbing down and shortening the curriculum is the way to fix the law school value proposition. I don’t think so. If people are serious about revolutionizing legal education for a new society and market, they’ll jump off the two-year bandwagon and take the time to investigate the gap between what students know and what they need to know to be truly great lawyers and counselors. Given how much culture, business, science and our understanding of human beings have changed since Langdell, it won’t take a whole lot of effort to find ways to fill three years that students, employers and clients will be glad they paid for.