Legal Commentary

The reform-of-legal-education blogging bandwagon continues to roll.  In the legal blogosphere, a good deal of attention has been paid in particular to Jason Mazzone's post at Balkinization suggesting the division of the law school into two physically separate departments, one focused on the study of law as an academic subject and the other on professional education in lawyering.  It also features interesting comments from Jerome Kowalski, who also promotes a book of his on the subject and who laments the absence of some form of mandatory clerkship prior to bar admission.  Both of these points have some validity, I think, but both of them also raise questions about what, exactly, we are debating in talking about reforming legal education, and whether we are confusing form for substance.  

In my last post on the subject, I argued that a substantial, although under-recognized, component of the practically minded law teaching that many critics of current legal education call for already exists in our law schools.  It is law as taught by adjuncts and clinical programs.  Not all law professors are sufficiently familiar with the adjuncts who stream in and out of their own law schools, or even with the clinicians who are there full-time.  Nor are all of them aware of the high enrollment levels in both these practically minded sectors of the law school.  I suggested that there is good reason to think that these individuals deserve higher recognition and status than they currently enjoy.  Somewhat to the contrary, Jason suggests that in his bifurcated vision of the law school, these individuals would not enjoy tenure, because they would not be writing and so would not need it.  (I'm not sure where this leaves doctrinal scholarship in his picture.)  If that's the case, it's a small move indeed from the current system, and with the added costs of transitioning to the system he recommends, not least constructing a new building for each bifurcation.  Do we not already come close enough to his model to forego the added costs?

Mr. Kowalski argues that we ought to have some form of mandatory professional apprenticeship before taking the bar.  He argues that under the current system and in the current economic climate, as clients refuse to pay for the work performed by first- and second-year associates, new law school graduates receive neither jobs nor training.  As a Canadian law school graduate who completed mandatory "articles of clerkship" with a law firm before joining the bar, I should sympathize with his argument.  I'm not sure I do.  

The Canadian experience may not be sufficiently similar to the kind of program he envisions.  But in my experience, the availability of "articling" positions waxed and waned with the economy just as surely as the availability of "permanent" associate positions in the United States.  In lean years, it was understandably difficult for a greater number of students to secure articling positions at all.  The number of firms willing to hire back their articling students also waxed and waned depending on the economy.  The year before I articled, only a third of the students at my firm were hired back; the year I articled, it was just over 50 percent; within three years, firms were attempting to meet the demand by promising to hire back their students even before they signed on.  It is true that those students ostensibly received "training," but I don't recall it being any different from the level of training received by first-year associates at firms in the United States.  (I practiced on both sides of the border -- making me, by some lights in the current debate, an "experienced" law teacher.)  It is true that we were not fully fledged members of the bar, but we performed the same tasks, ostensibly under supervision; the same is true of first-year associates at large firms in the U.S., whose work is supposed to be subject to supervision by higher-ups lest they face discipline under the rules of professional responsibility.  I'm not sure how moving the title forward or backward a year alters the economics of the situation.

If these are the proposals, I'm not sure that they adequately describe what is wrong with the current system or how they really address whatever is wrong.  I'm not arguing by any means that the current system is perfect.  But the changes proposed above seem to me to be more about form than substance.  A more substantive argument might charge that all lawyers ought to be professionally and practically trained, and only by experienced legal professionals.  Perhaps that is what Jason wants or is getting at.  That would satisfy many objectors to the current system, especially among law students and recent graduates; but another common complaint that often accompanies the complaints about theoretical law teaching is that there is not enough doctrinal legal writing, and Jason's proposal seems counterproductive on that point.  

And, although I don't think this is the whole of their complaint, I think what many law students are saying is not so much that they want training as that they want jobs.  Simply creating 200 professional law schools with professional training won't achieve that result if the demand for legal services is still lower than the supply of graduates; nor will mandatory articles of clerkship.  (The former proposal would, to be sure, better train students to hang their own shingles, although it would not by any means guarantee enough work to sustain them all.  Articling by itself does not actually create sufficient training to work on one's own; articling at my own large firm, I learned primarily how to work at a large law firm.)  I suspect many of those students or recent graduates would be more than happy to accept theory-spouting professors, if they knew they could find remunerative work at the end of the process.  

What this suggests to me is that we would answer this complaint better simply by eliminating a substantial number of law schools, regardless of the theory-vs.-practice debate.  Perhaps that is the debate we should be having, rather than debates over practical vs. theoretical teaching or doctrinal vs. non-doctrinal scholarship.  It is true that a more practical approach might better serve clients, but most of the discussion so far seems to have focused on what students and graduates want rather than what clients need.  If our interest is in students rather than clients, then I should think that eliminating law schools, not reforming them, is closer to the remedy we ought to be seeking.  

Not that I'm advocating this!  There appears to be a great demand for law school spots despite the economy.  Moreover, law professors are regularly told by law students (including many advocates of a "practical" approach to legal education) on legal blogs and elsewhere that the student is a consumer and an adult and should be free to make whatever choices he desires, including whether to show up for class at all and whether to use or refrain from using laptops in whatever manner she desires.  If we actually believe in this anti-paternalistic principle, then I'm not sure why the current setup needs to change.