Sunday, May 18, 2014

Why Justice Scalia is Wrong about Skills Training.

Justice Antonin Scalia gave the commencement address at William & Mary earlier this month.  (here) He made a number of good points, including that law school should be three years and that law schools must cut their costs.  However, I believe that his remarks concerning skills training in law school are wrong.

He declared: "It is not 'skills-based experience' that makes a person learned in the law. Legal learning is what only law schools can effectively convey. You graduates will never again have the opportunity to study systematically and comprehensively entire areas of the law—Intellectual Property, Commercial Law, Environmental Law, etc."

He continued, "And what is the use of having a bar learned in the law? What is wrong with a conglomeration of 'skills-based' experts? There are some pragmatic reasons. For one thing, the skills overlap, and even specialized practice in one field requires basic knowledge of another. One cannot write a contract or settle a case in utter ignorance of antitrust law—or, for that matter, the law of evidence; or write a will without knowledge of tax law and trust law; or litigate a case without knowledge of the substantive fields that are involved. Secondly, the lawyer who is familiar with many fields can apply the ancient learning or the new developments in one field to another—the constant interplay between tort and contract law is an example. In this way the law becomes a more cohesive whole, instead of a series of separate fiefdoms. But forget all that. Most of all, it is good to be learned in the law because that is what makes you members of a profession rather than a trade. It is a goal worthy to be. achieved—as you have achieved it—for itself. To say you are a lawyer is to say you are learned in the law."

My first objection to Justice's Scalia's comments is that skills and doctrine do not have to be separate.  You can have a skills element in an antitrust class.  In fact, the antitrust class I took my last year in law school did have a skills element; I had to write a memorandum on whether a defendant's termination of a plaintiff's franchise for not operating according to standards and not operating as to maximize profits violated § 1 or § 2 of the Sherman Act Antitrust Act.  As I have mentioned before, the Educating Tomorrow's Website has several detailed course portfolios on how to combine a doctrinal course with a skills class, including administrative law, evidence, international tax, white collar crime, the legal profession, copyright, state civil procedure, etc.

Second, law schools' traditional methods of teaching doctrinal courses are not as effective as courses that combine doctrine and skills.  It is an established fact that students remember more, are better able to use knowledge, and are better able to transfer knowledge between domains with active learning. (E.g., Gerald F. Hess, Value of Variety: An Organizing Principle to Enhance Teaching and Learning, 3 Elon L. Rev. 65, 81-82 (2011); Diane F. Halpern, Teaching Critical Thinking for Transfer across Domains: Dispositions, Skills, Structure Training, and Metacognitive Monitoring, 53 Am. Psych. 449, 453 (1998))  For example, problem solving, which requires active participation, challenges students to develop legal skills in context rather than relying on knowing legal rules, and it facilitates self-reflective learning. (Shirley Lung, The Problem Method: No Simple Solutions, 45 Williamette L. Rev. 743, 775 (2009))

Finally, a student can become learned in the law in a class that includes skills elements.  As mentioned in the previous paragraph one learns things better with active learning.  Equally important, is one truly learned if he knows something but can't use it?

(Scott Fruehwald)

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I don't think the good justice was using "skills" in the way you took it. By "skills-based," I think he was referring to the popular belief that many types of lawyering, such as title searching and scrivening, can be done by narrowly focused paralegals and such. Scalia was advocating for a broad-based and deep legal education as a foundation for later learning. He was also suggesting that the law school curriculum has too many electives and not enough in the way of required courses. Re-read his comments in this light.

Posted by: Publius Novus | May 20, 2014 11:46:29 AM

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