Hero Lawprof Backs Practical Education
The Washington & Lee Law School experiment into a third year practicum has drawn some heavy negative reactions from the lawprofs. This comes as little surprise, as these are people deeply vested in doing things the way they always have.
The criticisms have been a bit, well, facile if you ask me, particularly since I have some serious doubts that many lawprofs have a clue what most lawyers actually do for a living when they get out of law school. (Hint: not to many will get a chance to argue before the Supreme Court in their first year).
Sam Bagenstos, in a comment to Leitner's post on the experiment, offered this critique:
The new Washington & Lee approach, I hate to say, is more closely directed to training students to be the best first-year associates they can be. I'm quite sure that a student who goes through that program will, to coin a phrase, be "ready on day one" for the kinds of tasks that new lawyers do on day one. But I'm far less certain that a student who goes through that program will be a better lawyer over the course of a career. I doubt that law schools have much of a comparative advantage over practitioners in the kind of on-the-job, practical training that is the focus of the new W&L third year.
So many slurs packed into such a short comment. Who will stand up to this? Who will challenge it? As a lawyer, my views don't count in the world of lawprofs (we're just the hillbillies of the law). Anyone?
Yes, a champion has appeared to challenge all the naysayers. Bruce Boyden over at Concurring Opinions has taken on his colleagues, an act of some bravery when faced with the academic establishment's disdain for all things practical.
I believe it is crucial in legal education to go beyond simply asking students to read cases and instead require students to apply those lessons in practical settings. The understanding of an appellate decision that comes from simply reading and discussing a case is a hollow form of understanding. It is understanding without context, and pedagogical studies have shown that context is critical to forming long-term memories. The student cannot begin to incorporate cases or doctrines into their broader context until the practical significance of the holdings or rules is made clear.
But he doesn't stop there.
Nor is it the case, as these commenters suggest, that such lessons are easily duplicated in the initial years of practice. No practicing lawyer has the time to supervise subordinates closely enough, or impart their wisdom in a direct fashion while working through an issue. Lessons in practice come haphazardly and through trial and error. It is key that the students start learning those lessons as soon as possible, and ideally in a structured environment, with detailed and knowledgeable feedback, and in a setting where mistakes are not catastrophic. If that can happen anywhere, it's law school, not practice.
Yes! Law school is a darn good place to learn how to be a lawyer, not just read appellate decisions and "discuss".
Let me add my own two cents. It's true that most lawyers, eventually, will learn about life in the well of a court, what the various papers are, what they mean, how to put the nuts on the bolts. We all had to do it, though the poor clients we were charged with representing in the beginning got a lot less than they deserved, because we didn't know any better.
But the discussion of a third year of practical experience by the critics unduly trivializes the practical skills that can, and should be taught. There's no need for a class in how to sit on your butt in a library and cite check a memo for a Biglaw senior associate. There is a real need for learning what lawyers actually do, how they practice, how to argue, when to shut up and when to sit down.
My good friend Susan Cartier Leibel has argued zealously that there's no good reason why some kid fresh out of law school can't hang out a shingle and open up shop. I've disagreed with her, because no one comes out of law school knowing how to be a lawyer. Look at what happened to Daniel Hynes (okay, he may be a bad example), but lawyers know better than anyone how little law school prepares you to be a lawyer.
The only aspect of this experiment that I suspect will face some very significant problems is whether law schools will have practical lawyers in charge or leave the practicum to lawprofs. Even though most lawprofs spent a few hours practicing law before joining the faculty, it was usually for some US Attorney, judge or Biglaw shop. These aren't exactly the typical things that lawyers do, and the lessons learned really don't lend themselves to the work-a-day world where most lawyers live.
And one last thought. Even if this experiment fails, at least Washington & Lee tried something different with an eye toward producing real lawyers. It's a step in the right direction no matter what.