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While the article makes good points, I disagree with its fundamental premise that the case system is a bad way to prepare students for the practice of law. The

by grellas 15y ago

While the article makes good points, I disagree with its fundamental premise that the case system is a bad way to prepare students for the practice of law. The article offers what is really an academic critique of law school education. In effect, it says, "wouldn't it be so much better if we could just dispense with all that abstract case-law analysis and get on with teaching prospective lawyers how to draft contracts, how to try cases, how to handle client interviews, how to give strategic advice for doing acquisitions, how to negotiate personal injury settlements or divorce arrangements, how to represent clients before federal regulatory agencies, how to handle equity and debt funding for business ventures, and all the other things lawyers do." And it answers that question by saying, in effect, let's have experienced practitioners teach students in lieu of those who have been professors all their careers and who emphasize abstract academic writing as a primary means to career development, let's dispense with the classic core curriculum that teaches old cases like Hadley v. Baxendale as part of a student's foundational training and put in its place a lot of clinics where someone can guide students in how to negotiate, document, and close deals and in how to try cases, etc., and let's generally adopt an approach to legal education that allows students to be "client ready" by the time they first set foot in a law office on graduation. How is this to be achieved in a practical sense? The article does not say. It posits the problem and suggests that there are theoretical alternatives to the current system without offering answers. To learn to practice law well is a huge undertaking. Here is crude guide: 1. Learn issue-spotting. This is analogous to a doctor learning how to diagnose maladies. If you never see what the legal issues are in a given situation, you will have no clue about what is or isn’t important in a deal or in a dispute. A do-it-yourselfer in law most often falls short here: he will fill in the form as instructed but will fail to see the traps and pitfalls along the way or will fail to spot strategic opportunities for doing something better just because he is flying blind. A law student will do better in having been trained to spot the issues in ways that academic knowledge affords. A seasoned practitioner will do all that and much more in being able to guide clients based on having been through real-world experiences involving those issues many times before. It is basically a combination of brains, foundational knowledge, and experience. Ultimately, you need all three if you are to practice law well. 2. Learn to communicate well, particularly in writing. Law is often about words, their meaning, and their impact. As a lawyer, you often need to persuade, or to reassure, or to cajole, or to intimidate, or to do whatever the occasion calls for in serving the legitimate needs of clients. If you can’t speak well, and if you can’t write well, you will be an inferior lawyer. Conversely, to be a skilled lawyer for many purposes, you need to master the art of both oral and written advocacy (I elaborate on this here: http://grellas.com/articles.html http://grellas.com/articles.html). 3. Learn to think strategically. Law can involve many complex areas. The student will have a grasp of the theoretical complexity. The inexperienced practitioner will have some sense of how that complexity works in practice. But only a partner-level lawyer will have a consistent ability to take all that complexity and be able to handle it strategically - that is, be able to see the big picture, to understand how all the component parts fit in, to identify what matters most for a given situation, and to know how to sort through it all intelligently and efficiently to help achieve a client’s goals. A new grad in law will be at a serious disadvantage if he lacks a solid grasp of critical legal principles that are taught precisely by the case system. You won't be a great practitioner if that is all you have but you will likely be a poor one if you lack it. You will also be better for having done moot court or law review (or both) because these will help you master the art of communicating. But, even if a new grad comes in ideally equipped in all these ways, there is no bypassing the apprenticeship part of law, the learning by doing. In my experience, it takes about seven years for a new grad to grow from green lawyer into a highly efficient and strategic lawyer. That is what it means when a lawyer becomes a partner. Can the apprenticeship part effectively be merged in with the academic part during law school? In limited ways, yes. But it can't displace the academic part without serious loss to the student. The current system of legal education is full of problems and flaws but the solution does not lie is dispensing with or severely minimizing the case system of learning legal principles. In the end, you can fault it all you like but I still say, "three cheers for Hadley v. Baxendale." In the end, this remains a foundational part of good lawyering.

geebee 15y ago
That's a good write-up on the benefits of law school. My biggest problem with the current structure of JD programs isn't that they're useless, but that they're mandatory. For instance, you can make a case that majoring in Computer Science is a better than majoring in Math if you want to be a programmer, but you can't legally prohibit math majors from writing code. I'd like to see alternatives to JD programs. I think that a lot of the core skills you described are certainly developed in good law schools, but they are also developed well in lots of different academic paths. For instance, suppose someone double majored in mathematics and english literature with exceptional grades, followed it up with a grad degree. Should that person be forced to go through three years of law school? If this person were allowed to pass the bar and was able to do so, should we deny him or her the right to enter the profession? Would this person be ready with a one year course of study (maybe a master's degree)? Even if it would be "better" for this person to do the full JD, is it worth the additional time and money (and deterrence)? Are we better off as a society if this person gives up on law? (People who hold JDs are probably better off, which of course has a lot to do with how rigorously the JD is enforced as barrier to entry). There's a big difference between defending the JD as a good way to prepare for a career in law and defending the JD as the only way to enter the legal profession.
pnathan 15y ago
With appropriate replacement of nouns, similar arguments can and are made around CS education in the US right now. All the same considerations apply: theory vs. practice, writing capability, principles vs. application, never-ending desire for more practical capabilities on the part of new grads.
barry-cotter 15y ago
I disagree with its fundamental premise that the case system is a bad way to prepare students for the practice of law. But surely the ABA mandated "Socratic Method" is? I'm under the impression that it would only really make sense if law were lawful, which stare decisis aka argument from authority is valid renders ridiculous. Then you've got "hornbooks" (or so I believe they're called) which are a workaround of the fact that the Socratic method doesn't work. The other common law jurisdictions use the case law method, but they have decent text books, not functional kludges. On another note, why are J.D.s so long? I've read that the majority of essential legal education happens in the first year, what can in some schools be an M.L.S. (Master of Legal Studies) Can the apprenticeship part effectively be merged in with the academic part during law school? B.A. + M.L.S. + 1 or 2 years supervised traineeship = qualified attorney. That's approximately one of the methods of qualifying as a solicitor/barrister in the UK.

by grellas 15y ago

geebee 15y ago

That's a good write-up on the benefits of law school. My biggest problem with the current structure of JD programs isn't that they're useless, but that they're mandatory. For instance, you can make a case that majoring in Computer Science is a better than majoring in Math if you want to be a programmer, but you can't legally prohibit math majors from writing code. I'd like to see alternatives to JD programs. I think that a lot of the core skills you described are certainly developed in good law schools, but they are also developed well in lots of different academic paths. For instance, suppose someone double majored in mathematics and english literature with exceptional grades, followed it up with a grad degree. Should that person be forced to go through three years of law school? If this person were allowed to pass the bar and was able to do so, should we deny him or her the right to enter the profession? Would this person be ready with a one year course of study (maybe a master's degree)? Even if it would be "better" for this person to do the full JD, is it worth the additional time and money (and deterrence)? Are we better off as a society if this person gives up on law? (People who hold JDs are probably better off, which of course has a lot to do with how rigorously the JD is enforced as barrier to entry). There's a big difference between defending the JD as a good way to prepare for a career in law and defending the JD as the only way to enter the legal profession.

pnathan 15y ago

With appropriate replacement of nouns, similar arguments can and are made around CS education in the US right now. All the same considerations apply: theory vs. practice, writing capability, principles vs. application, never-ending desire for more practical capabilities on the part of new grads.

barry-cotter 15y ago

I disagree with its fundamental premise that the case system is a bad way to prepare students for the practice of law. But surely the ABA mandated "Socratic Method" is? I'm under the impression that it would only really make sense if law were lawful, which stare decisis aka argument from authority is valid renders ridiculous. Then you've got "hornbooks" (or so I believe they're called) which are a workaround of the fact that the Socratic method doesn't work. The other common law jurisdictions use the case law method, but they have decent text books, not functional kludges. On another note, why are J.D.s so long? I've read that the majority of essential legal education happens in the first year, what can in some schools be an M.L.S. (Master of Legal Studies) Can the apprenticeship part effectively be merged in with the academic part during law school? B.A. + M.L.S. + 1 or 2 years supervised traineeship = qualified attorney. That's approximately one of the methods of qualifying as a solicitor/barrister in the UK.