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What Should We Do with Legal Education? A Response to John McGinnis

I wanted to add my voice to that of my colleague, John McGinnis, who has posted on Law and Liberty about legal education, and, in particular, the one-size-fits-all approach to training lawyers on the part of the Association of American Law Schools. As John noted:

Lawyers working on the latest mergers at Wachtell, Lipton are performing substantially different functions from those writing typical wills or handling landlord-tenant disputes. Legal education should reflect the heterogeneity of the profession which it serves.

John criticized, in particular the AALS’s opposition to “replacing over time some tenured professors with practitioners.” He observed that the practical training many lawyers need can just as easily be provided by practitioners as by professors at law schools “try[ing] to resemble junior varsity Yales in devoting very substantial resources to the production of scholarship.”

It is now notorious that much, if not most, legal scholarship is only read by law professors, and as Chief Justice John Roberts and retiring Court of Appeals judge Richard Posner have both recently observed, is of no use to judges, let alone practitioners. I think, though, that while we’re at it, we might do well to consider more radically reforming legal education.

There may be signs that this is happening. Even ex-President Obama has questioned whether the three-year postgraduate model of legal education, which has prevailed since the time of Langdell more than a century ago, ought to be sacrosanct. Surely two years of classroom instruction (perhaps with a third year in an internship in government or with a law firm) ought to be enough for most lawyers. Perhaps those with an academic (or maybe even a judicial) bent might do one to three additional years, and maybe even secure a more advanced legal degree, but for most law students the third year is a repetitious, excruciating, and expensive undertaking.

Law school clinics such as the one we have at my institution, Northwestern, might conceivably have a third-year, practice-oriented experience turned over to them. But while we’re thinking boldly, perhaps what might be useful is migration of some law school clinicians into law firms, the better to train budding lawyers on the job. Conceivably, some fee-structure alternations might be called for, as novices perform some elementary tasks, under the guidance of in-house instructor-practitioners. Law firms have been complaining for decades about the lack of preparation even great law schools give their lawyers. Why not allow them to fix this themselves?

Once law school education in an optional or off-campus third year becomes established, we ought to rethink the first two years of legal education as well. Professor McGinnis and others have pointed out that law schools have yet adequately to come to grips with the digital age and the information revolution, and some attention obviously needs to be paid to that. My own feeling, however, is that it is long past time to recall some of the glories of what legal education once was, when the profession was regarded as more of a calling than a business.

When Northwestern was considering a new building a generation ago, I tried to persuade my colleagues that we should move the law school campus from Chicago to the home campus in nearby Evanston, in order the better to give our students the interdisciplinary grounding in history, philosophy, economics, sociology, and psychology, that the Arts and Sciences departments offered, for the first two years of legal education, retaining a practice-oriented third year on our Chicago campus (close to the law firms downtown). My plan was generally regarded as risible, due to the expense of maintaining two campuses, and perhaps two sets of faculty, but I still think it was inspired and ought to be implemented.

Even so, surely it is a shortcoming of legal education that we are producing too many lawyers with too little perspective on what law ought to be all about, and on its potential to be both an intellectually and morally enriching and a materially rewarding career. For the last few decades, the prevailing ideology in the law schools has been one of the malleable character of the law, and we have all but lost an understanding of our profession as one dedicated to preserving timeless truths of Western civilization, including liberty, dignity, popular sovereignty, and the rule of law itself. In an age when, supposedly, we are all “legal realists” now, and when the philosophy of a “living constitution” still prevails over the late Justice Scalia’s jurisprudence of textualism and originalism, it might be time, as conservatives are often wont to do, to sit astride history and yell “Stop.”

For four decades as a law teacher I have been seeking to show that a study of the Framers, their inspired design for the federal constitution, and their notions about the inevitable entwining of law and morality still have much to teach us. History doesn’t exactly repeat itself, of course, but there are certain patterns that reoccur with extraordinary frequency, because, as it turns out, human nature has not changed since the Founding of our Republic. Our two political parties, for example, now have radically different approaches to law, but this was also true in the late 1790s as the Jeffersonian Republicans struggled with the Hamiltonian Federalists.

Thus, if I were designing a law school curriculum for a reconceived legal education, I would have mandatory courses in English and American legal history, jurisprudence, economics, sociology, and psychology in the first year, building on the work of some our greatest classical legal scholars. The second year might focus on how today’s lawyers must understand and work with today’s managers and businessmen, and the information that makes what they do possible.  The third year, in practice, or in clinics, would have students actually practicing law, and they would do so with an appreciation of history that might just inspire them.

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