Law School Theory Vs. Practical Skills, One More Time

Yale’s own Professor Stanley Fish provided his own response to David Segal’s recent article in the New York Times that berated law schools for not teaching practical legal skills.  His lead example is his class on law, liberalism and religion where students learn the “long-standing debates in philosophy and theology about the relationship between religious imperatives and the obligations of democratic citizenship.”  His students will learn the arguments behind the arguments that inform a court’s decisions in the context of state and religion.  He cites John Locke’s Letter Concerning Toleration (1689) as one of those seminal documents that in fact the justices who are deciding a case may never have read but is nonetheless important in the context of cases arising out of the First Amendment’s Religion Clause.

Fish acknowledges in an off-hand way that the law, as he puts it, “is more than a technical/strategic exercise in which doctrines, precedents, rules and tests are marshaled in the service of a client’s cause.”  I could hardly disagree with him on that.  If I learned anything from law school, it is the rules of the societal game we play on a daily basis.  Personally, I found that profound in how I understand the way the world works.  Law school taught me about the law, the basic legal relationships between people, the obligations it imposes on governments and individuals, and the acceptable ways we interact with each other.  It taught me little on the mechanics of law practice.  

Back in the day when I took the bar, not knowing the mechanics of law practice was far from the worst thing a law school could do.  There were enough opportunities to learn on the go and enough safety nets to avoid legal malpractice claims.  I doubt that Professor Fish would suggest that practice and litigation skills are unnecessary to a lawyer.  I think his point is a scholarly understanding of the law is essential to crafting an argument that can be filled with precedent that expounds that argument.  Having said that, I’m still uncomfortable with his essay in that it I believe it suggests that the way law is taught is just fine the way it is.

I can’t but help thinking that students who do not attend schools with a cachet such as Yale might have more practical problems such as joining or establishing a practice that can provide retail legal services from the get go.  There is that problem of student loans to pay back, after all.  I suspect that the network that helps land a good job for those individuals is a bit more porous than those with a top twenty law school degree in hand.  It would seem, then, if these individuals could demonstrate immediate skills they could also demonstrate immediate value.  I’m sometimes asked to provide references for former students, which I am happy to do.  I get questions such as “are you familiar with the quality of candidate’s motions?”  I make it a habit to get copies of filings from individuals who use me as a reference so I can answer that very practical question to the interviewer.

I guess my point here is there is more to law than philosophy, and law schools should find a way to balance understanding the nature of a contract and how to write one.  For those who would respond that this is what a legal drafting class does, it is my sense that the legal writing program and instructors have long been regarded as second class citizens in most law schools.  In any event, we leave it to the student to integrate what they pick up in related but uncoordinated classes.  We expect students to figure it out for themselves, but maybe we could help them along as a response to the profession and economic conditions.  Could we essentially have a bit of balance in legal instruction where philosophers and practitioners are not academic versions of Twilight?

For fun, I thought I’d check on Westlaw to see if any federal court opinions mentioned John Locke’s Letter Concerning Tolerance.  In all the body of federal law, it is cited exactly once, in Catholic League for Religious and Civil Rights v. City and County of San Francisco, 624 F.3d 1043 (9th Cir. 2010).  Judge Silverman (JD 1976 Arizona State, by the way) passed it along in footnote 72.  For even more fun, I looked up philosopher Jacques Derrida, well known for the critical theory of deconstruction and a law faculty favorite.  He gets 1331 hits in the Journals and Law Reviews database.  The federal courts?  Not so much.  Six hits.  And what hits they are.  Here’s a sample:

Is a houseboat a house or a boat? That, in the abstract, is the enigma posed by this case. Fortunately, we need not answer it directly. As a court of law, we leave such metaphysical rumination to the disciples of Jacques Derrida, and address ourselves instead to the more tractable question of whether the Army Corps of Engineers (the Corps) properly deemed two particular houseboats to be permanently moored structures within the meaning of section 10 of the Rivers and Harbors Act.  (U.S. v. Members of Estate of Boothby, 16 F.3d 19 (1st Cir. 1994)).

Illinois does not apply the deconstructionist approach of Jacques Derrida to the law of contracts. (Transportation & Transit Associates, Inc. v. Morrison Knudsen Corp., 255 F.3d 397 (7th Cir. 2001)).

While deconstructionists like Jacques Derrida contend that language is inherently equivocal, the illogical interpretation of statutory and procedural requirements is rightly disfavored.  (Rodriguez v. Secretary of Health and Human Services, 794 F.Supp. 58 (D. Puerto Rico, 1992)).

Ooooh.  Can’t we all just get along?  [MG]