Friday, July 27, 2012
Here in West Texas, we are less than three weeks away from the start of school! Target overflows with notebooks and pencils. So I am giving considerable thought to how and what I will be teaching. It’s in that context that I read that, my alma mater has made something of a splash by announcing that it’s offering a Ph.D. in Law which is intended “to prepare students who have earned a J.D. degree from an American law school to enter careers in legal scholarship prepare future law professors.” Dean Robert Post explained further that the degree was necessary because, ““It’s becoming increasingly hard to transition directly from law practice to teaching” because “candidates are now expected to present a relatively mature scholarly profile; they need a defined research agenda and a substantial portfolio of writing.”
Given the near frenzy of criticism directed at law schools for not teaching skills, and in general for being a scam, that seems to be very poor timing. And certainly there’s been plenty of criticism of the new degree. But it’s also an opportunity to stop and reflect. What skills do you need to be a law professor and in particular, a health law professor? Health Law, as we all know, is an extremely big tent including, among other areas of practice transactional, regulatory, personal injury, patent, constitutional, labor, disability, tax etc. It seems unlikely that any one person could have an expertise in all of these subject areas, let alone the practice skills that go with it. So every one of us is probably at some point teaching something we have never seen in practice.
As I’ve written before, this is one of the big differences between law school and medical school. Pretty much, medical students are taught by people who know how to do what they’re teaching.
So where does that leave us? As someone who spent almost six years in a very large law firm which had a substantial commitment to skills training (including a ten day stint at NITA, several weekend long role playing hostile take-over simulations and six months spent trying torts cases for the City of New York) , I’d say I had a lot of it. And it was helpful. There is, for example, a helpful technique to make sure that you get all the useful information you can out of a deposition—and at the same time close the door to new information popping up at trial. It involves liberal use of phrases like “and then what happened?” or “what else was damaged by the flood.” Beginners sometimes cut off witnesses because what they’re saying sounds so damaging. But if they don’t say it at the deposition, they will at trial—so you might as well get it all now. I didn’t learn that in law school—I learned it around a big table at a deposition taking workshop.
But would any of those skills I learned be helpful to me had I skipped the years of closely reading cases (skipped all of them, I’m not going to defend the third year here)? Would the efforts of our full-time, in-house writing instructor be sufficient if I couldn’t distinguish one holding from another in a way that induced a judge to rule in my favor? I don’t think so. And I’d suggest that we not sell ourselves short because we do not have every skill that our students will ever need to practice law successfully—let alone the time to teach them. First of all, health law changes on an hourly basis. If CMS ever goes to a second shift, no one will ever be able keep up.
Second, we know more health law than they do (not health care, health law). And we know how law works.
I’m planning on telling my first years that we read cases for the same reason that medical students dissect dead bodies—to see how they’re put together.
Most doctors won’t find themselves spending much time carving up dead patients—and a lot of lawyers don’t read many cases. But while we have them, we can teach our students skills we are very good at. We can teach them about the structure of health law in the United States, we can introduce them to rules and regulations which are often much more important than statutes and cases. We can help them understand how to construct a winning legal argument and how to recognize a losing one. For the half of them who have never had outside employment, we can talk to them about returning phone calls, asking clients to summarize the discussion before walking out the door, and consider putting a device on their computer to block the “reply all” feature. And Yale’s law Ph.Ds.? Let’s let the market worry about that. Are they any less prepared to teach law than someone with a Ph.D. in the sciences or humanities or social sciences? What really is the fuss about? These calls to turn law schools into skills training institutions are becoming silly. All the skills training in the world won’t turn a college graduate into a lawyer who can help someone facing loss of their property, their children or their life. And, unfortunately, it won’t make an appreciable difference in a job market that for many regions has become very tough indeed. Should we do a better job teaching skills? Absolutely. And I have a lot of ideas how. But does that mean someone with a Ph.D. in law shouldn’t be a law professor—I don’t think so.