Wednesday, January 23, 2008

Tamanaha and Solove on Legal Education, Take Three

(Be sure to go to the original posts to read the full versions. They are both quite compelling.)

Brian Tamanaha has yet another provocative, interesting post on what is wrong with legal education:

The accreditation process is justified as the means to insure a quality legal education so that the public will be served by competent lawyers. Oddly, in the very period in which law schools were being instructed to boost their professors’ pay (to attract highly qualified professors) and to cut their teaching hours (so they could do more academic research, which would presumably enhance their knowledge and teaching), the American Bar Association also produced the MacCrate Report, arguing that law schools were doing a poor job of training lawyers. The reason for this failure: law professors were occupied with academic matters while neglecting practical legal training for their students.

When you think about it, the situation we have created is bizarre: law students attend law school to become lawyers (paying tens of thousands of dollars for the privilege); however, as the Report indicates, many law professors do not see it as their job to train lawyers—they are, rather, legal scholars...

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.

Dan Solove replies to this at Concurring Opinions (addressing certain other questionable claims raised by others):

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.


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