Saturday, November 26, 2011
...with this bizarre editorial:
American legal education is in crisis. The economic downturn has left many recent law graduates saddled with crushing student loans and bleak job prospects. The law schools have been targets of lawsuits by students and scrutiny from the United States Senate for alleged false advertising about potential jobs. Yet, at the same time, more and more Americans find that they cannot afford any kind of legal help.
Global capitalism is in crisis, and some law schools may be too (perhaps deservedly so), but it's just a massive non-sequitur to infer from the facts that some law schools have been sued (in lawsuits of unclear merits), that many law school graduates are unemployed, and that we need more affordable legal services for more people that legal education is any kind of crisis as all. Can the NY Times editorial board really believe that a change in law school instructional methods will affect the availability of new jobs for lawyers, whether in the private or public sector? That jobs will emerge from thin air to reward the newly-minted, deserving, and suitably re-educated young lawyers? Apparently so!
Addressing these issues requires changing legal education and how the profession sees its responsibility to serve the public interest as well as clients. Some schools are moving in promising directions. The majority are still stuck in an outdated instructional and business model.
Actually, no: "changing legal education" will make as little difference to these issues as "changing medical education" will solve the problems facing American healthcare. The collapse of a meaningful and well-funded public sector, spiralling costs of essential services (whether legal or medical or educational), and dramatic inequalities in American life are all artifacts of the neoliberal paradigm that has defined the last thirty years. The Times should get back to chiding Obama for being the latest Democratic aider and abettor of these neoliberal trends!
The problems are not new. In 2007, a report by the Carnegie Foundation for the Advancement of Teaching explained that law schools have contributed heavily to this crisis by giving “only casual attention to teaching students how to use legal thinking in the complexity of actual law practice.”
Actually, the Carnegie Foundation report did not attribute any of "this crisis" to the current structure of legal education. It did call for better skills training and more clinical opportunities--in order to improve the quality of education--but it was not, thankfully, in the grips of the Times's peculiar fantasies about cause-and-effect. (Wouldn't it be grand if changing the law school curriculum could solve all the problems the Times identifies?)
Instead of a curriculum taught largely through professors’ grilling of students about appellate cases [i.e., "the Socratic method"], some schools are offering more apprentice-style learning in legal clinics and more courses that train students for their multiple future roles as advocates and counselors, negotiators and deal-shapers, and problem-solvers.
The "Socratic method" of legal instruction has been in declining use for forty years (thank God!)--somehow the editorial board of the New York Times missed that--and every law school offers substantial clinical opportunities--some schools have even taken to requiring the latter, which seems to me a mistake, given the diversity of tasks that lawyers perform (some will never set foot in a courtroom, some will never negotiate a deal, some will never write a brief, some will never conduct a regulatory compliance review, and so on). And beyond the first year, of course, almost the entire curriculum is elective, so that students have the freedom to design the course of study they want, not the one the New York Times imagines. An editorial about the law school curriculum ought, one might hope, be based on some actual idea of what it looks like.
But the Times is taken with the idea that what ails the American legal profession is traceable to poor old Langdell:
In American law schools, the choice is not between teaching legal theory or practice; the task is to teach useful legal ideas and skills in more effective ways. The case method has been the foundation of legal education for 140 years. Its premise was that students would learn legal reasoning by studying appellate rulings. That approach treated law as a form of science and as a source of truth.
That vision was dated by the 1920s. It was a relic by the 1960s. Law is now regarded as a means rather than an end, a tool for solving problems. In reforming themselves, law schools have the chance to help reinvigorate the legal profession and rebuild public confidence in what lawyers can provide.
It's been a bad week for Langdell in The New York Times! He did think the key to a scientific study of law was the "case method," but not because it taught "legal reasoning" (though it could help with that), but because it allowed one to discover the basic principles of law in each field. That "vision" was not dated by the 1920s--an allusion to American Legal Realism, I suppose--but it was altered: whereas Langdell gave us Cases on the Law of Contracts, the Realists added "Cases and Materials" to the standard law school coursebook, premised on the (correct) idea that without knowledge of surrounding historical and social circumstances, as well as prevailing economic and business practices, one could not understand the evolution of the law or the actual significance of court decisions. But the Realists, like Langdell, aimed to teach students the law: indeed, it surely bears emphasizing that the Realists (unlike the editorial writers for The New York Times) were overwhelmingly lawyers immersed in the world of practice and sensitive to how the law and courts really operate.
No one in the history of American legal education ever believed law was "an end" rather than "a means," perhaps because it's not even clear what it could mean to believe the former. What everyone from Langdell onwards did believe was that there was something to learn about the law and legal institutions that could be taught in law schools. And it turns out they were right. Indeed, if the editorial pontificators at the Times had even a minimal amount of knowledge about law and legal education, they would know that in England, the Langdellian vision of legal study remains intact, without even its Realist modifications, and yet somehow the English legal system carries on, rather well even. Why isn't English legal education "in crisis"? Probably because it's cheaper (in part because it involves far fewer clinical opportunities) and it's an undergraduate degree--the latter a real reform that perhaps deserves some serious discussion. And perhaps, too, because newspaper editorialists there are better able at discerning the real causes of economic malaise.