Law “School”: Education or Professional Filtering?
Although offhand criticism of lawyers is uncontroversial and commonplace, critics of legal education are less common. One reason for this distinction might be because few people who have not attended law school have the requisite motivation and information to engage in such criticism. Additionally, many who have attended law school do not have the requisite motivation. This is because people who invest up to three of the vital years of their lives, hundreds of thousands of their dollars, and their health (especially that of their eyes and hair), cannot approach the possibility that it all might have been a bad idea. This is understandable, which is to say that I am able to understand it. Even a mere critique of the legal education system is but a first step down that forbidden path.
That criticism of legal education is not especially common is not to say that legal education is less deserving of criticism. One of the values of a forthcoming assessment is that it can provide useful information to those who are being blindly led like lambs to the slaughterconsidering applying to law school. Another value is the possibility of advancing law education reform which, by extension, could lead to positive changes across the legal profession and in improvements in the broader society.
In America, legal education did not always take place in the university cash engines that are our modern law schools. Law school is best understood as a professional school, rather than a graduate school (real graduate students, like English and philosophy Ph.Ds, like to remind law students of this), so it makes sense that lawyers once trained in an apprenticeship regime reminiscent of Paul Revere or, more topically, Abraham Lincoln. Before the Civil War, aspiring attorneys apprenticed with an established lawyer, a custom known as “reading law” or “reading the law.” The shift to modern law schools began in the late 1800s, and the transition from apprenticeship to institutional training was a gradual one. (The transformation is not complete: even today, in places like Vermont, apprenticeship remains a recognized path to the legal profession.) In the process of making this transition, did the nature of the mission of legal training change as well? What, in other words, is the real purpose of modern law schools, and does it have any connection to the original apprenticeship model?
Legal professionals today commonly say that law school does not train students for the actual practice of law. Despite the ubiquity of the federal government in citizens’ lives, the majority of law is state law, and the majority of legal work takes place on the state and local levels. The differences are not so striking, but states do have their own discrete sets of laws and rules. Even where states have adopted the federal or model rules that are often the basis of law school classes, they rarely do so in whole or keep the same numbering and organization. In short, to be a functioning attorney, one must study and become expert in the laws, rules, and policies of the particular state or states in which one is practicing. See also state bar examinations. Disassociation with a particular locale was not a problem under the apprenticeship model, but there may be no better way to handle this aspect of law school education if schools are going to continue to send graduates to a variety of states for employment than to teach only the federal rules or model codes.
It is one thing if law schools cannot feasibly teach, in a single course, the specific rules of evidence and procedure for multiple jurisdictions, but it is another if the basic educational approach is misdirected. Law school is, in some ways, an uncomfortable nexus of the academic and professional worlds. Trainers are professors, (usually) not practitioners, and they must grade students’ work, not simply give feedback. The entire grade for a course usually is based on nothing more than a final examination, a written test that could last as few as three hours or as many as twenty-four. The letter grade on a transcript and, maybe, a look at the marked up answers, frequently are the only feedback a student receives.
Less formally, law school classrooms are not so often the hosts of heavy and widely participatory discussion as some might expect. The combination of the Socratic Method and access to wireless internet (though it may be nothing more than a twenty-first century substitute for daydreaming) often renders class a one-on-one exchange between the professor and the “on call” student. Common first year courses like contracts are broad, and have complicated histories such that it may be difficult to get through enough basic material in one semester to reach a point where discussion is useful or possible. On the other hand, the black letter foundation of each of these courses is well-established and mostly uncomplicated. Why, then, do professors so often obscure it or otherwise “hide the ball”? The answer might be understood by returning to the formal conflict between the professional and the academic in the area of grading. There are complicated parts of contract, tort, and criminal law, and of the procedure and evidence rules, but their core tenets are fairly easy to understand. The core tenets are also the main focus of the exams. This presents a problem when one is concerned about grade distribution, and law school administrators are concerned about grade distribution. Presumably, students’ raw scores are mostly clumped around a certain number. Grading professors must work to find distinctions between exam responses to force the clump apart and into a neatly organized bell curve of standard deviations. If they hide the ball during the semester, this will make the to-be-tested material harder for more students and the exam responses easier to curve.
Obscuring the material may be a rational response, if the problem is one of grading and grade distribution. If the goal is professional legal training, however, this all seems a bit crazy. What could be the goal of a training system based on generating a particular grade distribution, other than professional filtering? A law student’s grade point average is the most important factor in hiring decisions. There are other relevant factors, but none nearly so important as GPA. To work to fashion a particular spread of GPAs is, when combined with the employer emphasis on grades, to operate a system of professional filtering.
If this is what is happening in law schools, it still might not be a problem if the professional marketplace values the skills the academic approach rewards. As presented, this approach rewards skills detached from the substance of the course, which mainly come down to hard work in the form of the ability and willingness to think independently and teach oneself the material. Hard work is a virtue and is relevant to any form of employment. This approach only rewards hard work, it doesn’t teach it, however, and it obscures the substantive legal material. If this presentation represents reality, it is hard to see the true value for students in an institution that looks like a professional regulatory hurdle.
In the end, there is little opportunity for practical, learning-by-doing education in law schools today. Clinical courses are not emphasized, legal writing is relegated to the first year and widely derided, and legal research education is outsourced to WestLaw and LexisNexis staffers whose goal is to hook law students on their service with free access and rewards programs. The overall situation is one of deferred apprenticeship. During summers and after graduation, students complete the apprentice-style, on-the-job training they need, learning the profession’s skills in their work with practicing attorneys.
There may never be a good time to ask someone what they think of law school, but now– when students are preparing for finals, prospective applicants are considering their futures, and those who graduated or left early are reaching a point of end-of-year reflection– is as good a time as any to have a conversation about the way we train people for work in a service industry that is both the butt of many jokes and one of the most well-respected professions in the country.