“If law schools could build their programs from scratch, without the ABA-imposed condition that training must consist of three years' worth of material, what would and should they look like?”
That’s the concluding sentence from this post. While it may have seemed rhetorical in context, it really wasn’t intended to be. I planned to write out a whole series of follow-up posts with an entire outline for a brand new law school program. A business plan, with a price tag and everything.
But the blogosphere and other things have that habit of pushing forward anyway, and in the meantime I came across two other stories and posts that let me frame this follow-up more precisely.
First is Paul Horwitz’s characteristically thoughtful Prawfsblawg post noting a post by Chai Feldblum at Concurring Opinions, part of a symposium on a new book by Robin West. Both of the posts concern the challenges of curricular reform at law schools. Chai Feldblum urges reformers to engage students in the tasks of understanding and advancing visions of justice beyond lawyers’ work for clients. Paul wrote: “[Feldblum’s post, along with one other, is] potentially indicative of a serious gap between the ways different law professors discuss things like law school reform, curricular or otherwise, and also of a gap between the ways that some legal academics discuss law school reform compared to the ways that students, lawyers, and recent graduates struggling to find actual jobs discuss it.”
I’ll offer my own take on what occupies that gap. I want to avoid any suggestion that I am interpreting Chai Feldblum or responding specifically to her post or to her work. The following is not in opposition to anything she has written. Rather, the exchange above prompts me to set out my own view of what usually drives students, lawyers, and recent graduates in their views of law school and legal education, and what is too often missing from faculty views. That is: Clients.
Changes in the client-side, demand-driven aspects of law practice and the legal profession are responsible for much of the turmoil in lawyers’ lives of the last five years. Anecdotally, talking to some of my colleagues at Pitt and at other schools, and reading law faculty blogs, this seems to surprise a lot of faculty, both in the sense that they didn't see this coming and in the sense that they don't really understand how it all works. (Bill Henderson's work is helping enormously on the faculty side.) That relative innocence has long spilled over into the classroom. Students and new graduates are rarely taught much if anything about just how much of the lawyer’s role revolves not around the lawyer’s identity, and not about the content of the law or the behavior of legal institutions, and not about their “skills,” but instead around the needs, wants, economic capabilities, and conflicting and often poorly-articulated goals of clients. Individual clients, yes (and therefore some law students get some exposure to all of this in law clinics), but also groups of clients and most importantly institutional clients – small and large. Clients are sometimes interested in abstract notions of justice, but clients are almost always more interested in justice *for themselves.* The hand that drives the common law, and most other law, isn’t so invisible – unless you’re a law student, absorbed in and directed to figuring out how to understand the role of precedent, and holdings, and how to reason through a new set of facts, and other such technical detail, important as it all is. “The client” too often becomes just a proxy for “interests” and “the facts” used to explore the sources and meanings of the law. Out there in the world of practicing lawyers, however, clients, in all of their complexity, come first.
No lawyer should be taught to abandon all concern other than fidelity to client. Law and lawyering are about justice. Lawyers no less than courts and legislatures and agencies are charged, in principle and in practice, with mediating between different visions of the good, and law students should be given the intellectual and practical skills that allow them to do just that. But the lawyer’s mediating role in that process typically does not occur in some distinct “law reform” space (except, perhaps, for some graduates of elite law schools) that is somehow distinct from client work. Justice is mediated precisely in the context of actual work for actual clients. That – the multiple accountabilities of lawyers, to client, court, and society -- is precisely why the relationship of law to justice is so challenging. That complexity is what I think law students need to see much more of, and should experience more of, and from a very early stage in their law school careers. Law and law school isn’t about them. It’s about other people and all of the weirdness and wonder that other people entail. As a partner I worked for many years put it, quietly and simply, “it’s a service business.” If you can’t handle that, then you should find some other line of work.
Bringing that home in terms of curricular design (if not necessarily “reform”) means, I think, bringing the client much more explicitly into the law school classroom – all law school classrooms, and not just clinics (where my point is often very well-understood), and not just classes in Professional Responsibility – than is the convention today. Bringing clients in means bringing lawyers' accountability to others to the forefront in law teaching, and in practice that might mean any number of things: everything from close reading of cases from the perspective the parties present and future, rather than that of the lawyers or the decisionmakers, to inviting clients (real clients or people playing clients in role) into class discussions, to grander re-alignment of course materials, team vs. solo teaching, group work by students, substantial changes in assessment methods, and putting students to the task of actually expressing judgment on behalf of clients, rather than the “one the one hand,” “on the other hand” sensibility that suits their comfort zones. Personally, when I run hypotheticals in my own classes, I like to put some students in the position of clients (note the plural – I’ll often have several clients in the hypo at one time), because I have learned from personal experience that few things taught me more about being a lawyer and about the legal system than being a client myself. Believe me, as a client, I neither wanted “justice” nor, as I observed the system grinding me down, did I always get it. And no amount of complaining to my lawyer, or close reasoning and careful advocacy by my lawyer, could change either of those things. Yet the lawyer quite reasonably and legitimately expected that I would pay him.
Second, the burden of doing all of this falls not on “law schools” or “legal educators” but actual living, breathing law professors. In a recent piece in the New York Law Journal, Luke Bierman eloquently and thoroughly made the case for experiential education in training law students. Luke is speaking from experience; his law school, Northeastern, is both a pioneer and a leader in this stuff. But in exhorting others to follow Northeastern’s lead, Luke fell back on calls to “law schools” and “legal educators.” Alas, this is unlikely to be effective. Here and there, a law faculty may, as a group, take a leap forward in this direction. Washington & Lee, for example. But most law faculties are blends of teaching traditionalists, fence-sitters, and a few innovators. Some in each group are older and more established; some in each group may be younger and/or newer to teaching. How are these people to be made to think and act different? (Awkward syntax courtesy of Apple.) Few deans have the formal or practical authority to order the school’s teachers to march to a different drummer in the classroom. “Incentives” to innovate, whether framed as carrots or as sticks, have their limits. Tenure cuts against innovation at both ends of the seniority spectrum. New law teachers want tenure, thus fear innovating. Tenured law teachers often justify teaching complacency as the price that students pay for freeing faculty to experiment with their scholarship. Tenure means, among other things, a stable teaching package, and no new course preparations. And tenure aside, law professors are above all else creatures of the legal system that they create and perpetuate: like all lawyers, they often honor tradition and history more for the sake of honoring tradition and history than because honoring history and tradition leads to the most sensible outcomes today. Subconsciously, we all have a little Kingsfield in each of us, or (if that reference and image is dated) at least a little Professor Stromwell (Holland Taylor in Legally Blonde).
We have met the enemy and he is us. Breaking the mold requires something else – some other kind of motivation and some other kind of execution among individual teachers, who are not indifferent to tenure or tradition but are not ruled by them, even if their own law schools are not innovating substantially at the institutional level. Despite the many structural barriers to innovation and improvement in teaching, at almost every American law school there are pockets of innovation – disruptive teachers – who are doing different things with their students and for a variety of reasons. Many of those things fall under the umbrella heading, “experiential education,” but the label may mislead. What these things have in common is that they are different, in some large and in some small ways, and the differences are in almost all cases, in my anecdotal experience, aimed at better alignment of law teaching and the experiences of lawyers in the contemporary legal profession. No one imagines giving up the core strengths and traditions of American legal education - the emphasis on rigorous analytic thinking, the injunction to think critically independently and to communicate effectively. Langdellian education and its derivatives are not, however, the only ways to get there.
My advice, then, is this: If you’re a Dean: Find these teachers, support them, and publicly and privately celebrate them and build around them. If you’re a teacher and you’re curious about this stuff, talk to these people and learn from them. If you’re a law student, enroll in their classes! If you’re an alum, press the Dean of your school to bring these people forward and engage with you and your colleagues in the legal profession. Build externship and internship pipelines that lead from their teaching to work with you and ultimately to full-time employment with you or elsewhere. Help the Dean amass the resources needed to support and celebrate these teachers and their students - tangibly, out of your own pocket, and intangibly, with political support and advocacy among your peers and colleagues. Or all of the above.
None of those things is as easy as I may have made it appear. Deans do not want to play favorites, or to appear to play favorites. Law teachers, especially veterans, often believe that they have no need to learn from peers, let alone from more junior colleagues. Students avoid things (teachers, subjects, styles) that don't look and act like things that they have already encountered and mastered. And alumni think that law schools should simply be doing this as part of the ordinary course of things. Land mines and risks, known and unknown, abound.
Luke Bierman quoted Hastings Dean Frank Wu, who has compared legal education to 1970s Detroit. I’ve written of a different and to my mind, more apt comparison: Legal education is the 20th century steel industry – massively successful up until the very end, and then, in a moment, it wasn’t. Not successful, and not much of an industry. American steel producers (including producers in Pittsburgh) have rebounded, and they still make lots of great steel – but the big integrated producers don’t make the huge quantities of the structural steel that made them rich and powerful, and in all that they produce today, they employ only a tiny fraction of the US workforce that they once did. In Pittsburgh, where I live and which has become something of a poster-child for the chic revival of post-industrial America, the scars of the dislocation, disruption, and loss wrought by the crash of steel are still visible, and full of meaning and economic impact, 30 years on.
The collapse of American steel may or may not have been avoidable, at least at the very end. But everyone at the top of the pyramid, on both management and labor sides, saw the end coming: the over-capacity, the flawed economic model, the changing demand. They saw it decades ahead of time. Everyone diagnosed the problems as the responsibility of other players. In macro and micro ways there were plenty of opportunities for management and labor collectively to take a balanced view of their futures and to avoid walking over the precipice together. Yet walk over the precipice together is what, in the end, happened. The parallel to legal education is imprecise. At the very least, this is not law schools’ 1981, the year that Steel's struggles really started to hit home in earnest.