David Segal’s piece in the New York Times yesterday raised serious questions about whether law schools are really teaching students to become practicing attorneys rather than, say, just good law students. The piece also addressed such things as clinical work, legal scholarship, and the cost of law school.
My perspective on these issues is unique because I happen to be a first-year law school student, I’ve worked in litigation for many years prior to law school, and I’ve have read countless law review articles. So here is my take on several of the points covered by the article.
Segal’s first main criticism of law professors came from a 2010 study of hiring practices at top-tier schools showing that prior to being hired, professors had a median of one year practical experience and over half of them had never practiced law.
Let me first say that not all experience is equal. All things being equal, I myself would rather have a professor who has clerked for federal court of appeals judge and then a Supreme Court justice over someone who worked at a small firm for a couple of years. Additionally, not all law school courses require practical experience.
Nevertheless, I think the lack of practical experience is definitely a negative. I can’t imagine taking a class like Civil Procedure from someone who hasn’t actually used the civil rules to litigate. I’m fortunate to learn Civil Procedure from a professor with a wealth of litigation experience.
Segal next quotes a recent graduate from George Washington who says, “What they taught us at law school is how to graduate from law school.”
I have several problems with this quote. For one, this guy learned how to study the law, which is what real lawyers do every day. That is a huge part of practicing law. Second, what one gets from law school is partly within one’s control. If you took electives like Evidence, Trial Advocacy, Advanced Legal Research, and the like, over subjects such as Law and Literature, Great Cases in Supreme Court History, and Aristotle: Law, Politics, and the Human Good Seminar, then you might leave law school with a better idea of how to practice law.
Implying that law schools teach theory over practice, Segal explains how most first-year students are required to take Contracts, where they will learn classics such as Hadley v. Baxendale instead of learning how to write actual contracts.
I may have agreed with Segal a few months ago, but now I understand why we learned Hadley (we covered it a few weeks ago) and not how to draft a contract. No one is ready to learn how to draft contracts in the first year; moreover, for many law school students who are not planning to enter business or corporate law, the ability to draft contracts taken from electronic templates is not a needed skill.
Segal says that “much of academia produces cryptic, narrowly cast and unread scholarship,” and then follows up the claim with law review articles with pretentious sounding titles.
Having read a few hundred articles and writing some of my own, I must agree, as a general matter. A good portion, but probably not a majority, of legal scholarship is awful. Even if the ideas are good, many pieces are incredibly difficult to read. Often times, the pieces are simply a punched ticket by those wanting faculty jobs or by students wanting to fill out a resume.
Segal ends the piece discussing law school clinics. He notes that clinical programs are on the rise at most schools.
The proliferation of clinics is a good thing. I think that schools should try to create more clinics even if they are more expensive. Whatever students would lose in faculty or legal theory would surely be made up with invaluable hands-on training.
As to the overall slant of the article—that law schools don’t do enough to teach students how to be lawyers—I simply can’t agree with such a broad proposition. Law schools could, of course, shed some of its ties with the traditional casebook method and instead implement clinical programs in their place, but I don’t think they can forego it all. They still need to teach the underlying theory of law because without that, students won’t have the core skills to learn the law on their own when they are in practice.
Learning the Hadley case didn’t teach me anything about how to draft a corporate merger contract, but it did teach me something about the law, about how judges view the law, and about how to raise legal arguments. I think that’s a worthwhile lesson.
For more commentary on the NY Times piece, check out these bloggers: Jonathan Adler, Matt Bodie, Brian Leiter, Jason Mazzone, and Larry Ribstein.