Theory vs. Practice: How Schools Should Teach Law

As a professor at Pepperdine Law, Derek T. Muller is affected very directly by the questions raised in Scalia’s speech. “I think lawyers need a background and training in how to approach the law and how to think about the field,” says Muller, a Notre Dame graduate who worked as an associate at Kirkland & Ellis for about two years before deciding to teach. He notes that laws change, so students can’t just memorize facts for three years straight; things have to get philosophical. Still, he adds that theory is not enough. “At the same time, it is a training for a profession, and that includes . . . gaining professional skills, such as understanding how to interact with clients and how to handle cases before the court,” he says.
According to Muller, law schools have to make necessary tradeoffs between specialized courses that help students with specific jobs, and bread-and-butter subjects that make students think like lawyers. Which classes belong in the former category and which classes belong in the latter? It’s the subject of constant debate.
Muller acknowledges that the legal education students currently receive is not as well-rounded as it used to be. Nowadays, schools offer certificates and encourage students to specialize in specific parts of the law, reflecting the fact that law itself has become more complicated.
Scalia isn’t exactly happy about all that choice, though. During his speech at William & Mary Law, he called out the University of Chicago for not requiring students to study the First Amendment. “Can someone really call himself an American lawyer who has that gap in his compendious knowledge of the law?” Scalia said.
Muller doesn’t think that’s a practical way to look at legal education. “It’s very aspirational,” he says. After all, as a Supreme Court Justice, Scalia handles a lot of First Amendment cases. But his point about the importance of a core curriculum still stands. “At the same time, I think he’s also addressing the fact that there’s a core body of legal knowledge that practically every student should have,” Muller says.
Deciding which classes are important isn’t just the legal academy’s burden, Muller says. Students have to make those calls, too. “I think law schools are responsible for providing meaningful, substantive legal courses to their students,” he says. “Students, I hope, are aware that law school is a place for that kind of training and will make that selection accordingly.”
It’s a tricky point to make, because many people go straight from law school to college with little to no full-time work experience. How are they supposed to know what a meaningful, substantive legal course is? Muller points out that most law students’ first years are pretty much mapped out for them, and they don’t have to make any big decisions until they’ve had their first summer jobs. He hopes that law schools are also providing students with guidance through academic support programs. Either way, Muller believes that in the long run, student enrollment will indicate what’s useful and what’s not.
As for two-year programs, he sees them as niche options rather than threats to the entire legal academy. At Pepperdine, for example, students in the two-year program take the same number of credits as everyone else. “I think by offering an additional option for students, it can really aid those that want to move ahead with their careers,” he says.
Scalia’s view of two-year programs is bleaker. “Since the modern legal academy appears not to believe that there is a solid and significant core of courses that entitle someone to be admitted to the profession of law, it is small wonder that there are calls for shortening law school to two years,” he told William & Mary Law’s Class of 2014. “If and when that happens, the shrunken faculties will have only themselves to blame.”
A lovely send-off indeed. At least he finished on a positive note: “Welcome to the ranks of—not tradesmen, but men and women learned in the law. Congratulations.”