Theory vs. Practice: How Schools Should Teach Law

scalia

Supreme Court Justice Antonin Scalia

Supreme Court Justice Antonin Scalia doesn’t want anyone to think that getting a JD degree is like being a graduate of a trade school. “It is not that,” he asserted at William & Mary Law School’s 2014 commencement ceremony earlier this month. “It is a school preparing men and women not for a trade but for a profession—the profession of law.”

What he means, essentially, is that efforts to make law school more condensed and customizable are seriously misguided.

Scalia’s concerns are especially timely now that JD-required jobs are scarce and law school is more expensive than ever. In the face of rising costs, many schools have begun offering two-year JD programs, which Scalia vehemently opposes. “To say you are a lawyer is to say you are learned in the law,” he told the graduates. “And, to return to the point, you can’t do that in two years.”

Scalia also opposes what he considers useless electives. “It is something of an open secret now that the second and third years of school offer a student the chance to study whatever strikes his or her fancy—so long as there is a professor who has the same fancy,” he criticized. He was especially perturbed that Georgetown Law lets incoming students choose between taking traditional first-year courses and taking “‘Curriculum B,’ which includes courses such as ‘Bargain, Exchange, and Liability,’ ‘Legal Process and Society,’ and ‘Property in Time.’”

This isn’t the first time he’s bashed electives. Last year, he told students at the University of New Hampshire Law School, “Do not take, ‘law and women,’ do not take ‘law and poverty,’ do not take ‘law and anything.”

Is Scalia simply out of touch, or is he rightfully calling out law schools who’ve gone too far?

A COMPLICATED QUESTION 

I posed that question on Reddit, and one answer perfectly encapsulated how complicated it actually is. “On my first day of law school, my contracts professor told my section that ‘lawyers have more in common with plumbers than philosophers,’” recalls one user. “I think that’s mostly true—but primarily because it shows how the legal profession is so unique. The profession is so diverse that it can’t be equated with any other profession or trade. We have our basic legal ‘technicians,’ but also academic ‘philosophers.’ And law school awkwardly tries to prepare you for both paths.”

What’s the best way to give students a dose of both? A different user suggested giving tier one and tier three schools different functions. “People at Yale, Harvard, Stanford, etc. should be trained to do things like write legislation, be appellate judges, or other higher level things like that,” the user said. “But schools like mine, the T3’s—I think we should be taught law like a trade.” He says employment, his area of law, “isn’t the most complicated thing in the world in terms of the law” but it comes with side challenges like marketing and practice management that don’t get covered in school. “I think law school would have been much more valuable to me if it was taught more like a plumber’s apprenticeship than an academic endeavor,” he says.

It’s an idea that might take shape as many institutions continue to fight for survival, but law schools are unlikely to implement it anytime soon. Given the current state of affairs, then, how can law schools simultaneously give students a strong legal foundation and stay practical? I discussed the question with a lawyer-turned-entrepreneur and a Pepperdine University School of Law professor. Here’s what they had to say.

Screen shot 2014-05-23 at 5.52.11 PMMARC LUBER: “NO ONE WANTS TO SHAKE IT UP”

“In law school you experience nothing, and that’s absurd,” says Marc Luber, a Chicago-Kent College of Law graduate. Yes, law schools tout their clinics, but “while there may be good opportunities to experience something, if you don’t learn about those clinical opportunities and get signed up or if there aren’t any that meet your interests, then it’s too easy to experience nothing,” he continues.

Luber is the founder of JD Careers Out There, a site that helps job-seekers figure out ways to use their law degrees. He was inspired by his own law school experience. After spending a summer as an associate in the legal department of a major record label, he realized law wasn’t exactly a fit.

Luber wishes he’d been exposed to more practical lawyering during law school so he could’ve come to that conclusion sooner. He brings up the example of medical school, where students spend two years in the classroom and then rotate through every single kind of practice. “To spend three years doing what’s essentially just theoretical discussion or mental masturbation in class—I think it would be more useful to blend that with hearing stories of what it’s really like or getting experience where you can see what it’s truly like,” he says.

Is he for cutting a year off law school? “No, I’m not for a two-year program,” he emphasizes. “I just think that the third year should be different. If the third year can have some kind of hands-on experience, I think that would be more useful.”

For example, while Luber feels that the bread-and-butter theoretical classes—constitutional law, civil procedure, et cetera—are very important, he doesn’t like the way they’re taught. “I do believe that special way of thinking, reading, and writing comes from a lot of that theoretical discussion,” he explains. But in contracts class, he remembers reading plenty of them but never once drafting one himself. “That is absurd,” he says flatly.

Practical learning doesn’t even have to happen in a work setting, Luber adds. For example, what about bringing in more guest speakers who work full-time. He notes that law school career centers offer programs with guest speakers once in a while, but a lot of people either don’t know that they’re happening or can’t be bothered to attend them (unsurprisingly—they probably have too much reading to do).

The American Bar Association (ABA) limits the extent to which classes can be taught by professors with up-to-date lawyering experience. It requires a major portion of each law school’s curriculum to be taught by full-time faculty. That means professors who can bring clients to class and talk about the skills lawyers use day-to-day are relatively rare.

Luber doesn’t want to completely gut the law school curriculum. He just thinks the material needs a dose of reality. “I feel like it’s done the way it’s done because that’s the way it’s always been done,” he says. “No one wants to shake it up.”

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  • EPOC

    What makes law school so great is that it is well teaching LAW. “Education” and “training” should be separate and in this discipline done right, school is about the law and work is about learning to lawyer. It is actually the right way to do it. Having said that, why it continues to get more and more expensive is beyond me!