Monday, November 21, 2011

Reflections on David Segal's Latest NYT Article

As indicated by Steve’s ridiculously kind post below, I visited the University of Kentucky last Friday.  (Thanks for the warm hospitality!)  I drove from Winston-Salem to Lexington, and stopped, as I often do, at libraries and cemeteries of interest.  Some of my “people” were in Bourbon County, Kentucky for a few decades in the late 1700s and early 1800s, so I enjoyed visiting the Cane Ridge Meeting House and the John Fox, Jr. Memorial Library in Paris to learn more about them.  My genealogy research often informs my understanding of property law, so I was fascinated to discover details regarding my ancestors’ land holdings in Kentucky, including deeds from Patrick Henry, as governor of Virginia, to my ancestor Leonard Hall, and documents relating to the probate of Leonard’s will and the distribution of that land between his ten children.  To understand these transactions and their context, I had to spend a little time reading up on the legal and popular history of Kentucky and Virginia.

So, steeped in this brief but illuminating study of early American property law, I returned home to read this Sunday’s New York Times and the latest article by David Segal.  In some ways, I am the poster child for the reforms that Mr. Segal advocates.  I joined the academy after practicing commercial real estate law for ten years.  For five of those years, I taught business drafting as an adjunct.  My scholarship is far more practical than theoretical (and thus is rarely cited).  When I ran the in-house legal department at a real estate developer, I hired and trained attorneys fresh from law school.  You won’t find a truer believer that transactional law and skills deserve a more prominent place in the law school curriculum.  That being said, I think that Mr. Segal view of law school is desperately wrong in many respects.

Mr. Segal makes several statements highly critical of the first year curriculum.  For example: “Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England.”  He does make an accurate if clever observation: “Here is what students will rarely encounter in Contracts: actual contracts, the sort that lawyers need to draft and file.”  (Question:  how many contracts get “filed”??)  And this so clever it is untrue turn of phrase:  “To succeed in this environment, graduates will need … to know less about Contracts and more about contracts.”  (Mr. Segal makes a fair number of factual and logical errors in his article, but those are fairly obvious to anyone who has ever gone to law school and are discussed elsewhere in the legal blogosphere, so I won’t belabor those points.)

So after spending my weekend as I did, my critique of Mr. Segal’s view is as follows.  Reading Leonard Hall’s 1791 deed makes me a better commercial real estate lawyer.  Struggling with the history of property law in post-feudal England (which is an odd description, by the way) makes me a better commercial real estate lawyer.  Taking the classic, Harvard Contracts (big C) class made me a better commercial real estate lawyer.  I am a better commercial real estate attorney because I have a deep and rich understanding of the common law of property and contracts, and the legal history of the United States and England.  I draw upon this reservoir to make creative legal arguments, to help my clients understand the boundaries of the law, and help them maneuver within it.  For example, I have worked with some skilled and experienced paralegals during my career.  But paralegals are not the same as lawyers.  I would not hire even an experienced paralegal to do the same work that I would hire a young lawyer to do.  The central reason is that paralegals understand contracts, but they do not understand Contracts.

As a lawyer, I understand both.  Yes, I can draft contracts.  And yes, I learned my drafting skills on the job, not in law school.  But frankly, the idea that there are “skills” classes that will teach law students everything they need to know in order to practice law is ludicrous.  That world has never existed and becomes increasingly unrealistic as the law becomes simultaneously more specialized and broader.  I was a fairly sophisticated corporate and real estate lawyer for a decade and I can’t answer the question that Mr. Connolly asked his new associates in the beginning of Mr. Segal’s article.  But hey, give me a few hours and I’ll figure it out.  See, that’s the point.  Law school teaches you HOW to be a lawyer, which includes the ability to figure out answers to questions that we haven’t even asked yet. 

There are many aspects of the law school experience that could be improved.  But if the critics of law schools are interested in real reform, then we should engage in a discussion of what works and what doesn’t.  And I, as an advocate for increasing the emphasis on transactional skills and drafting, will continue to argue that a strong theoretical and historical first year curriculum needs to remain the foundation of American legal education.

Tanya Marsh

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