It seems curious today, but Christopher Columbus Langdell viewed his method of teaching law as intensely practical. He had, after all, practiced for what today seems a long time, fifteen years, and while he did not for an instant believe that practice experience was essential to or even helpful for law teaching, his own practice experience did inform his view of what lawyers needed. The method he put in place at Harvard – the structured multi-year curriculum, the case method, Socratic questioning, examinations based on hypotheticals rather than reciting back doctrine – was designed to prepare law students for practice better than the lecture and recitation method that had preceded it.
The method took for granted that the core to being a successful lawyer was mastering an esoteric body of knowledge. As Langdell put it in his casebook on Contracts:
[Law] considered as a science, consists of certain principles or doctrines. To have such a mastery of these as to be able to apply them with constant facility and certainty to the ever-tangled skein of human affairs, is what constitutes a true lawyer; and hence to acquire that mastery should be the business of every earnest student of law.
That Langdell saw mastering a common body of knowledge and knowing how to apply it as the core of professional practice should not seem exceptional. Sociologists routinely define professions as involving the application of a common body of specialized knowledge.
What's more, the goal of learning all the important law was an achievable task for students. As late at 1897 Holmes declared mastering the “finite body of dogma” a task that could be achieved within a “reasonable time.”
Learning doctrine, of course, was not the only selling point for Langdell's method. The case method, by forcing students to experience the formation of rules directly and develop their own ways to categorize and organize doctrine, was also seen as getting students closer to what lawyers did. Armed with the law they needed and facile at applying it, graduates were equipped for practice, a generalized practice that still bore more similarities lawyer to lawyer and office to office than not.
As time went on, the importance of the common body of knowledge faded from defenses of the case method and the importance of knowing how to think about legal issues gained prominence – by 1907, Langdell’s acolyte James Barr Ames was justifying Harvard’s approach on the grounds of teaching “legal reasoning.” That justification – that law schools teach students to ‘think like a lawyer’ – has stayed with us to the present day.
As my last post considered, law practice has changed fundamentally since Langdell reformed law teaching. Today law practice is highly specialized, and rather than roaming across the field of the common law modern lawyers tend to their own narrow patch of expertise. Today, no one can master all the ‘dogma’ that is routinely applied by lawyers in the major law firms or major government agencies. There is just too much. Whatever marks the commonality of the practice of law – and should therefore play into the training of lawyers – it’s not applying the same technical legal expertise on a day to day basis.
Neither does the background knowledge or skill reflected in ‘thinking like a lawyer’ provide a sufficient answer to training lawyers. As practice has evolved, legal reasoning remains important – much as putting is important to golf – but it’s far from the whole game.
In this context of specialized practice, how should law schools respond with regard to their mission of training lawyers?
One approach – argued for by Justice Scalia – is to mandate an extensive core curriculum, requiring students to know about a broad range of substantive categories. In a recent commencement address at William & Mary, he attacked the notion that law school could be trimmed down to two years. Drawing on both his own experience as a student and on important areas of law that arose after his own training, he identified a long range of areas that graduates should know about. The list included Agency, Civil Procedure, Contracts, Criminal Law, Property, Torts, Accounting, Administrative Law, Commercial Law, Constitutional Law, Corporations, Taxation, Trusts, Intellectual Property, Environmental Law, Bankruptcy, Title VII, the Americans with Disabilities Act, the Employee Retirement Income Security Act, the Foreign Intelligence Surveillance Act, the Patriot Act, the Aviation and Transportation Security Act, the Clean Air Act, the Freedom of Information Act, the Foreign Sovereign Immunities Act, the Affordable Care Act, Sarbanes—Oxley, and the First Amendment.
That’s a lot of law. Whatever the benefits are of holistic and cross-boundary knowledge, there’s a whole lot of law there would never be relevant to the practice of many specialists. At the same time, it's not enough law. It doesn’t begin to cover many of the substantive areas that were core to my practice, not to mention to my colleagues up and down the halls and elevator banks, even if the courses went beyond survey mode and into the nitty gritty where practicing lawyers spend their time.
Another approach, and perhaps the one utilized by most law schools, is to not worry too much about covering seemingly infinite doctrinal areas but to rely on teaching the technique of “thinking like a lawyer.” There are two problems with this approach in our age of specialization. First, there has been a growing response from the market, including clients of law firms, that this produces graduates who are not useful to their employers. Second, perhaps more importantly, ‘thinking like a lawyer’ is only one of the many competencies possessed by successful lawyers, and for many far from the most important one.
A third approach involves making students “practice ready,” which as I understand it means loading them up with the specific substantive knowledge and skills needed for modern practice. Again, this approach is not trouble free. By their nature, schools are a step removed from practice, and may not have either the personnel or the mindset for imparting state of the art skills for any but the lowest common denominator kinds of practice. Second, while some hope online drills or even games can change this, skills training has been labor intensive, a problem in a setting where the labor is quite high priced. Last but not least, truly useful skills tend to be specific to specializations, and it is hard for students to predict which specialized skills will be in demand. (None of this is an argument against clinical or experiential education, by the way, which have benefits and potential far beyond making someone practice ready in a given field.) Netting it out, I don’t see how schools competently make students “practice ready” for dozens, if not hundreds, of distinct practices, and then match the students with jobs needing those skills. Kicking the skills training to post-law school apprenticeships looks, to me, like a tacit admission that this is a job law schools cannot do.
The underlying quandary, and I think we are deep into it, is that law schools face a real challenge training students for the kind of specialized practices they are likely to encounter with the kind of limited (to 'thinking like a lawyer') but generalized training and thinking we’ve used in the past. We need to identify what’s common about legal practices of all different kinds, and figure out how to move students closer to succeeding in those necessarily diverse and somewhat unpredictable destinations. I have some thoughts on that that I will get to in a later post.
There is another problem for law schools with regard to specialization – as legal practices become more and more divided into narrow specialties that rely little on what was taught in law school, it becomes relatively clear that somewhat less than a full legal education might suffice to get the job done. Again, Justice Scalia had something to say on this at William & Mary:
One can practice various aspects of law without knowing much about the whole field. I expect that someone could be taught to be an expert real-estate conveyancer in six weeks, or a tax advisor in six months. And maybe we should train such people—but we should not call them lawyers.
As legal practice becomes more and more specialized, the possibilities for non-lawyer specialists to take on roles that used to belong to lawyers become ever greater. If a lawyer does not actually need broad based legal training to proved the specialized service, competitors who are not lawyers can enter the market unless the market is protected. On the corporate side, where regulatory barriers are largely papered over by having general counsel in between the law workers and the non-lawyer clients, we can already see a number of these – e-discovery specialists, document review specialists, litigation consultants, merger and acquisitions consultants, and on and on. Other countries, including the UK, have opened the doors to such providers, and some states have relaxed or are looking at relaxing barriers on the consumer side of the market. I think the range of non-lawyer specialists that compete for law work will only become more extensive and more elite over time.
How do law schools respond when six weeks or six months of training equips non-graduates to compete competently with their graduates? This also is something I will dig into more in a later post.
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