Tuesday, November 22, 2011

The Unexamined Life of the American Law School

David Segal recently published an article in the New York Times entitled: "What They Don't Teach Law Students: Lawyering." It's a dreadful piece of journalism, but it raises an issue that law schools really should be thinking about much more seriously.

It would be tempting to entitle this comment, "What They Don't Teach Journalists: Reporting." The Segal article is really a shoddy piece of work. It has a couple of obvious factual errors (incorrectly stating the coverage of criminal procedure courses; referring to a paper by a philosopher in a philosophy journal as an example of a law review article.) It also engages in obvious cherry-picking -- finding articles with ridiculous-sounding titles in obscure law reviews rather than talking about recent issues of major law reviews, which probably would sounds more interesting and relevant to readers. Articles about topics such as originalism or Guantanamo may not be relevant to most practitioners, but newspaper readers might think they were a worthwhile use of time. And the ratio of editorializing to facts in the Siegel article is very high.

The article's view of legal practice also seems rather unintelligent. It assumes corporate law courses should be teaching students how to file paperwork, rather than trying to understand the economics of how transactions work and why corporate law imposes the requirements that it does on boards of directors or how courts review merger tactics. Segal complains that students aren't taught what papers to file for a merger. Why teach that in law school? It took me less than a minute to get the answer by googling "Delaware merger formalities."

As I say, it would be tempting to dismiss the article as an example of the decline of American journalism. But the article is right about one really important thing: law schools are extremely unreflective about what they are doing and about the needs of their students. We make little or no systematic effort to find out about what lawyers need to know to do their jobs or to think about how that may change over the next few decades. In fact, we don't do nearly as well in thinking about these things as the military -- for example, the Army commissioned a really interesting study by RAND about how to train officers for combat when future wars are likely to involve situations and tactics that we can't foresee today (such as the use of IEDs in Iraq).

Law schools could certainly benefit from a little self-evaluation. Our first-year curriculum focuses on common law subjects, even though we live in a statutory world. We teach criminal law courses that largely ignore both the drug crimes that are central to criminal practice and the biggest policy issues relating to criminal justice (racial disparties and sentencing). We make every student take civil procedure even though a minority will become civil litigators, and in any event the course teaches little about the two biggest tasks for civil litigators (managing discovery and negotiating settlements). And by the way, it's hard to get people to teach these courses because most faculty members find them profoundly uninteresting. Thus, we've managed to create a first-year curriculum that combines dubious practical utility, lack of policy salience, and theoretical banality. The main reason we do these things is that we have always done them, and it would be a lot of trouble to change.

I fully understand why no one wants to really think about these issues. It's a major struggle to add or subtract a single hour of credit from a first year course. No one -- certainly not me -- wants to devote endless hours to a quixotic effort in radical curriculum change. Ed Rubin's efforts at Vanderbilt are a salutary lesson in what happens when someone is brave enough to challenge the status quo. But it would be nice if we could at least start a serious discussion of these issues among ourselves.


Anonymous Edward M. "Ted" McClure said...

While I agree with Professor Farber's general conclusion that law schools could use some introspection, I disagree with his facts in his fourth paragraph. Yes, we live in an increasingly statutory world, but the interpretation of those statutes at the working lawyer level uses common law lawyering. Until the student understands the underlying concepts of crimes, best taught with simpler crimes like larceny, incredibly complex statutory crimes such as drug crimes are opaque. And teaching policies over which the junior lawyer has no influence (much less control) is contraindicated if our goal is practice. As for civil procedure, he is wrong on two points. First, the critical concepts taught are the fundamentals of the American legal system--jurisdiction, federalism, finality, law vice facts, inter alia. Lawyers need to know where to find rules and what they mean. They can learn the specific skills (his examples of managing discovery and negotiating settlements) later. Second, I think his numbers are wrong on the proportion of lawyers in practice who need to understand civil procedure. If I understand correctly, more lawyers are generalists than specialists. All the generalists and many of the specialists need to understand civil procedure. Even transactional attorneys need to understand the result if something goes wrong. One drafts a contract with detailed terms and extensive boilerplate to preclude litigation or, if it happens, to make it come out favorably for the client. Irrespective of these quibbles, I agree with Prof. Farber that most law school need to tie together their ends, means, and ways much better than they do now.

11/22/2011 5:56 PM  
Blogger Unknown said...

Litigation, discovery, fact investigation, civil procedure, and all that don't _have_ to be boring and untheoretical. The problem is that we law teachers don't understand these processes very well. It's high time we (and lawyers) made an effort to understand the underlying logic(s) and dynamics of these processes. (I over-generalize. But you get my drift. And, no, I'm not preaching law & economics-imperialism)

11/23/2011 3:39 AM  
Anonymous Anonymous said...

The journalist's name is spelled Segal. It diminishes the impact of your essay that you didn't take the time to spell the man's name correctly.

11/30/2011 10:57 AM  

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