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September 12, 2014

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PaulB

I wouldn't take any comment by Wilson on the legal profession too seriously. After graduating from law school, he moved to Atlanta to open up a practice. In his eighteen months there, he did not attract a single client, then gave up law and went to get a PhD in history. Kind of reminds you of certain modern day law professors.

Orin Kerr

I'm not sure I understand how lawyer specialization makes "Langdell's method" (itself a contested and uncertain concept) outdated. Why doesn't it make that method more timely than ever, as highly specialized practices make it difficult if not impossible for graduates to be "practice ready"?

Ray Campbell

It is outdated in the sense that the kind of general, common law practice Langdell was preparing students for no longer represents what most lawyers do.

That Langdell's method is outdated does not make it useless. Just as putting is a very important part of the game of golf, some form of legal analysis remains an important part of the work of most lawyers, at least for any lawyers who are not engaged in a wholly commoditized practice. I'm not going to argue that law schools should abandon the task of teaching students to think like a lawyer. Neither will I that abstraction and theory are unimportant to practicing law, because I learned in practice that those are very practical skills.

I am going to say that it makes sense to think about what lawyers do today as we think about how we ought to train lawyers and as we think about how our system of legal services should be structured. Looking at how specialization has replaced general practice for most lawyers is one part of that.

As for practice ready, that's not going to be the way I frame the objective, for some of the reasons you identify. More on that later.

I don't understand, btw, why "Langdell's method" is a contested or uncertain concept. I think the record is pretty clear that Langdell introduced and popularized the case method and the case book as a new pedagogical method. While those have evolved substantially over time, I think Langdell's method remains identifiable and remains distinct from either the lecture method or apprenticeship. To the extent you were talking about whether Langdell actually believed in a science of law, which people tend to see as related to his method, I tend to think he did and that it is, but I understand that questions have been raised and that the evidence of his ever discussing a science of law is scanty. I also can see a contrarian argument that American law teachers or American law case books no longer really follow Langdell's method, despite all the assertions that they do, but I don't see where it's unclear or contestable that Langdell had a method that has been widely adopted and adapted.

Scott Killingsworth

I think this is a very perceptive big-picture view, Prof. Campbell. As to Langdell, I agree with you. On the other hand I have ever been amused -- partly because the quip is portable to other persons and situations -- by my professor Grant Gilmore's description of Langell (and his method) as "An essentially stupid man who, early in his life, hit on one great idea to which, thereafter, he clung with all the tenacity of genius."

Orin Kerr

Ray, I now understand you mean "Langdell's method" to mean the case method, or perhaps more specifically, learning legal doctrine by studying appellate cases. I'm just not sure why that is outdated. What about the case method presupposes some sort of 'general practice' as opposed to a specialized one? As I see it, the case method has always been about one part of learning law, the part about understanding doctrine. Whether legal practice is specialized or not is a separate question, and I'm not sure what it has to do with the merits of the case method.

In any event, I gather that you have a broader argument that you're developing step by step here, and it's probably inappropriate of me to ask questions and seek clarification before the full argument has been presented. If so, my apologies.

Ray Campbell

Orin, I really appreciate your comments and questions, so please don't hold fire. It really helps to get questions.

I'm going to want to think about your comments, and I may change what I think as a result, but let me give it a whack now.

You are right, I believe, that the case method has always been about learning to think critically and learn how to derive law from cases, rather than covering the maximum amount of doctrine. That said, and I may be wrong about this, I think it was the goal of the 19th century Harvard Law to send students out with enough coverage of doctrine to allow them to function as common law lawyers. I think that's one of the reasons they lengthened the curriculum to three years. The spread of the required first year courses across core doctrinal categories, and the kinds of electives they had back then, seem to me to be directed at giving students the body of knowledge that professional lawyers needed to do their job. That they gave something up in terms of maximum coverage to promote critical thinking does not mean that Langdell and his peers viewed "thinking" without a sufficient grounding in applicable law to be enough. The kind of practice that 'enough' was measured against was the common law practice of the day. In that era, there wasn't a lot of law, there were not yet West reporters, there weren't a lot of treatises, and lawyers were expected to carry more of the law in their heads than we would expect today. In the kinds of general practices that were common then, the full range of the curriculum could matter to a normal practice.

Sometime after that, as the sheer quantity of law exploded with the rise of the administrative state and the growth of statutory law, the idea that you could really learn enough law to practice went away. We still keep the spread of first year common law courses, although I think it's common for many lawyers in practice to feel that much of the substantive law they learned had no bearing in practice. I think - and again I could be wrong - that the first year curriculum derives from Langdell and his colleagues thought was the body of law needed for a common law lawyer, and I think we're ripe for rethinking what modern lawyers really need to know. If it's not the law - if we just teach torts and property cases to teach a mode of thinking - I think we might want to step back and ask if those are the best vehicles for that.

I think in a world of specialization there's a question about whether, at least in some specialties, you really need a base in all the common law doctrinal silos or even to think like a lawyer in order to get the job done. Certainly, tax accountants compete for tax work without a law degree. Herbert Kritzer has done empirical work looking at areas where non-lawyer specialists are allowed to compete, and found that it's not a big hurdle to learn the rules that matter to a narrow context, and that non-lawyer specialists deliver as good a service as a lawyer. In terms of structuring the legal system, we may be overeducating people who end up being technicians.

Beyond knowing law, how to find law, and how to think critically about law, there are skills and competencies that mark successful lawyers, and law schools today often neither teach nor filter for those competencies. I think some of those competencies are different from the competencies a common law lawyer would have needed, in part because the work of a specialized technician is different from that of a common law lawyer. I have some thoughts on what those competencies might be, and some thoughts on how law schools could address those in a way appropriate to academic institutions but that will take more development later.

Orin Kerr

Thanks, Ray. Two quick thoughts:

1) What's the evidence you're relying on for what the goals were of curricular reform in the 1870s at Harvard? Just looking at the Harvard Law School catalogs of the period, (which you can find here: http://pds.lib.harvard.edu/pds/view/9045568?n=2&imagesize=1200&jp2Res=.5&printThumbnails=no) the courses don't appear to have any practice component at all. They were just classes in the major areas of law, not about practice or "general practice." If you have been studying the history and there's evidence that the original curriculum was actually practice-oriented, and based on a common practice concept, then that's very interesting and certainly worth blogging about.

2) If your focus is really about whether the traditional 1L curriculum is the best background for legal study, then that's a separate question and one that is certainly debated frequently in law schools. On that topic, I would say two things. First, the 1L curriculum today has similar labels to that in Langdell's day, but I think is very very different in content. For example, criminal law today is mostly statutory; civil procedure is a mix of statutory and con law; contracts often has a large dose of the UCC. That's really different from what it was in Langdell's day. Second, I think the traditional 1L curriculum ends up being about building blocks. Contracts is the building block for courses in business law; criminal law for classes in criminal law and procedure; etc. There are certainly ways in which we could fiddle with the curriculum, but the basic idea of questioning whether the 1L curriculum needs to be updated is one that is very frequently asked and considered in law schools, I think.

Ray Campbell

Orin, on the second point, I agree. I think the modern curriculum derives from what Langdell put in place, but the coverage, the casebooks, and the classroom style often are quite different. I also agree that for quite a long while people have been thinking about how to improve the curriculum, and a lot of that thought has been both practical and insightful, and in schools high and low has led to meaningful improvements. I don't think those incremental improvements have solved the fundamental training problem, and I think there are things to think about that haven't been, so far as I can tell, enough of a part of the discussion. I do think I want to be careful about my natural tendency toward hyperbole.

On the first point I have some reading and thinking to do. Thank you for the link. Given that one of the defenses of the lecture method was that it provided students with a complete overview of the doctrine young lawyers needed to practice, I had assumed that Harvard aimed to provide, if not as much, at least enough doctrine to provide a command of the specialized professional knowledge that marked lawyers, but let me think about that as I do some more reading.

Douglas Levene

Ray,

I'd like to make one small point that is sometimes overlooked. The case method that we teach our students in the first year is not only useful for litigators. In fact, transactional lawyers need exactly those same skills. First year students learn to draw out a rule of law from a case; the professor then tests (and hopefully students learn to do the same) whether that rule works by posing a series of hypotheticals. Drafting a contract for a transaction works the same way. The lawyer comes up with a rule of law - a contract provision - that attempts to solve a problem. Smart lawyers then think of numerous hypotheticals to test whether the proposed rule of law actually works. This may be one of the reasons that successful transactional lawyers are quite often students who do well in law school.

twbb

Douglas, I think the problem is that many of the professors themselves who are teaching these first year courses frequently lack a truly nuanced understanding of how law and fact patterns interact. In retrospect, after practicing I can retrospectively see where those professors, many of whom had been teaching for decades but never seriously practiced, really didn't understand the law as it is practiced.

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