Saturday, August 22, 2009
Posted by Jeff Lipshaw
Paul Lippe, who has been an agent provocateur (or thought leader, as they say) on the subject of legal education, has a follow up to his original Am Law Daily commentary to which our Bill Henderson linked a while back. Follow the link and read it for yourself, but I'm not sure if the comments are available if you aren't a member of Paul's Legal OnRamp, so here's mine if you want to hit the "back" button on the browser after you read his column:
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Like Ray [Campbell, visiting professor at Penn State Law School, who also commented - UPDATE: see his original comments below the fold], I'm a former Big Law partner, and I was the VP & GC of a Fortune 850, NYSE company. I'm less likely than Ray (based on his comments) to try to argue that today's paradigm of legal scholarship has anything more than a passing relevance to the in-the-trenches practice of law. But that's not really the point. Practitioners have to understand that we started down a particular path over a hundred years ago when C.C. Langdell came up with the idea that law could be derived inductively from the reading of cases, akin to the scientific method in other disciplines. (There's a social science term called "path dependency" and it has to do with how hard it is to get off a particular path once you are on it; as an example, if you take a job at the beginning of your career with Weil,Gotshal, you've created different path dependencies for future choices than if you take a job with Sooem & Servem in Elko, Nevada.) Law became a subject for instruction in research universities, not merely for the training of lawyers, and with that developed a community of legal scholars, developing, indeed evolving, their own standards for what constituted advancement in knowledge. For a long time, that had to do mainly with legal doctrine, and academic energy devoted itself to the great treatises, and the great doctrinal advances like the UCC.
The problem with comparing law to medicine (as I did, and to which Paul links) is that while the practice of medicine is both art and science, the science is still hard science, and, moreover, the linkage between cutting edge theoretical research and its practical application is far more intuitive. For example, my son has his name on a paper that deals with work on the very subtle science of diabetic neuropathy in cells - how at a molecular and cellular level does the glucose cause the problems it does? Even if the research isn't directed at a cure, we can understand it in the web of scientific research that leads to useful advances and human flourishing.
That's far harder to do in law, and one only needs to scan the titles of the last 2,000 or so papers uploaded onto SSRN to confirm the hypothesis. Moreover, there's a lot of work produced and in spotty quality because of two structural features of academic law as it has moved down its particular path: (a) the sheer number of law professors compared to other disciplines, because the training of professionals subsidizes the theoretical pursuits; and (b) the plethora of student-edited (and non-peer-reviewed) journals. In short, law as academic discipline is still finding its place in the world. Given a hundred years of path dependence, however, "solving" the problem of legal education isn't going to occur without some acknowledgment of the academic paradigm. For example, we could certainly, as a logical possibility, move to a world in which most lawyers are trained in vocational institutes, and make theoretical "law and..." part of more traditional humanities and social science Ph.D. programs. But I suspect that most lawyers like their ties to the status of research universities that spawned most of them.
In fairness to Ray Campbell, my original version of this post did not treat fairly his original and thoughtful comment on Paul Lippe's column over at Legal OnRamp. Here it is in full:
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Let me weigh in as someone who has been a big law partner, a start up company CEO, and now a law professor.First, let me question your central assumption. Is being a lawyer just about serving paying clients? Not to diminish the importance of providing awesome service to clients, but I think a lawyer's duties are a bit more nuanced than that. You can be a great, client oriented lawyer and keep an eye on the bigger game, but you diminish the profession and short sell what law schools need to do if you take too narrow a view of a lawyer's role in society. I was privileged to work with some great lawyers, but a complete lawyer is going to bring to the game some of what Jerrold Solovy does - not just great client service, but a sense of what the law means in society.
I also think you might be surprised if you spent more time really looking at what law schools are like now. I know I was. Law schools are way better now than they were back when I was in law school. The scholarship is more interesting. (Really, it is. The various "Law and" movements have brought some fundamental insights, and add a lot more than novel length doctrinal treatments.) There are more opportunities for practical and clinical learning. Many law schools are looking hard at how they can best participate in the overall society, and have spawned institutes and centers that play vital roles.
In other words, some pretty smart people at law schools are already trying to address some of the issues you have identified, and have made real progress even if they haven't cracked the code entirely. The faculty I know are extremely concerned that students graduate well prepared to practice, even recognizing that their training will continue long after they graduate.
That's not to say law schools can't improve. Any institution has room for improvement, and that's especially true for institutions where a big chunk of the productive staff need respond only to their own views of what they should be doing. But, if we are going to talk about how to improve them, it would really help to start with an accurate assessment of both what law schools do today and what kind of lawyers they need to be creating.
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