Brian Tamanaha has just posted another interesting post in the discussion about legal education. He writes:
Most law schools now follow the elite model, striving to hire faculty and produce scholarship like research universities, when it might better serve the interests of many non-elite law schools and their students to concentrate on training good lawyers. Money now allocated to scholarship and research leaves would instead go to clinics and other practice training; professors would teach 15 hours or more a week; faculty would be hired for the desire and ability to train lawyers, not for scholarship; more law schools would look like Massachusetts School of Law (which the ABA has mightily resisted). Schools built around this alternative model would produce capable lawyers at a much lower tuition, which would be good for the students and good for society.
This vision of legal academia allows for a range of law schools, serving different needs and circumstances, rather than one academic model for all. It makes sense, but to succeed it must have the support of law professors.
Brian blames a lot of the problem on the ABA, which has imposed a one-size-fits-all model on the academy. I agree with Brian that this is unfortunate. But from Brian’s earlier posts and from some of the discussion in the blogosphere, there are some claims being made that I think are questionable or wrong. Brian doesn’t make many of the claims below — they are often made by people who are interpreting or building off his posts — so I’m not ascribing them to Brian. But they are swirling about in this debate, and I think they ought to be addressed.
Claim #1. The turn in academia toward a greater focus on the academic study of law and toward more scholarship results in students being less well prepared for practice than they were before this more academic turn in the academy.
Are students today less well-prepared for practice than 50 years ago? Were law schools 50+ years ago producing better lawyers? Did they have better bar-passage rates? I wonder whether the practice of law has suffered because of this change in the academy.
Claim #2. The turn toward interdisciplinary scholarship and to scholarship more in general is one of the primary reasons for the greater cost of going to law school.
Is this really a primary reason for the tuition increase? Has the tuition of law schools increased more than the tuition generally for higher education? My sense is that the cost for higher education has increased across the board, and so I wonder whether the increase is due to other factors beyond the change in the nature of legal education.
Claim #3. The best way to prepare students for the practice of law is to teach them practice skills such as drafting, negotiating, arguing, etc.
I think that it is certainly important to teach students basic lawyering skills. But in reading discussions about the issue, I often hear a common refrain that teaching students jurisprudence, legal history, and other interdisciplinary subjects is not really that essential — it’s a nice frosting on one’s legal education, but nothing more than a sweet tasty coating.
But I believe that there is a real value teaching students to think about the broader issues in the legal system, about the larger moral questions, about the tension between the rule of law and justice, about the policy implications of laws, about the sociological and economic effects of regulation, and so on. I believe that this makes students into better, more capable practitioners. Many, however, remain skeptical of this claim.
Yet, there’s another reason why teaching students these things has value. Maybe our task as legal educators isn’t simply about producing technically-competent lawyers. Being a lawyer brings a lot of power; our students will enter the elite realm of society. Unlike many people, they’ll have an incredible set of tools to change society and affect people’s lives. Should we simply train them how to be more effective hired guns? Or maybe we’re right to try to spur them to ponder the broader issues of the legal system, to understand its history, to think about whether certain laws are good or bad. I think that legal education should be more than merely a lawyer factory. We’re not just training people in skills, but we’re preparing them to enter a profession, one that plays a profound role in our society. And there is value to having those that work in that profession (at all levels — from lawyers, to judges, to policymakers) spend some time thinking about the effects of the law on society.
Should this be shrugged off as theoretical fluff that is only of use to academic-types who sit as armchair commentators about the law? Or should it be something that all lawyers confront and think about before they embark on their careers? I believe that there is value in thinking about the meta questions — the critical awareness of what one is doing, the system one is working in, and its larger social effects– even if doing so doesn’t help one win a case or draft a document or complete a deal.
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.