Naked Lawprof Mudwrestling: Doctrine, Practice and Skills
Eek. While Miller's bottom-up approach strikes a chord, the rest emits an unpleasant odor. So challenging the interdisciplinary approach of elite academics shows a "profound ignorance" of legal practice in lower courts? That's a bit of a strong statement.
The False Dichotomy Between Practice (Doctrine) and Academics
I've made the argument in previous postings that interdisciplinarity is necessary to understand low-level courts. But I also believe that interdisciplinarity is an essential party of *any* law school education, elite or *non-elite*. That’s why I’ve been so disappointed by some recent attacks—in the name of educational pluralism or practice-readiness—on interdisciplinary approaches to law as so much academic self-indulgence by faculty. The idea appears to be that there is a dichotomy between what lawyers need to know and what "academics" teach, and that often rides on the back of an argument that what "academics" teach is fit only for those folks at the top law schools who want to become academics themselves. I think this is a false dichotomy, and it shows a profound ignorance of much of legal practice, and certainly practice in lower courts or the non-elite end of the spectrum.
Miller was taken to task in the comments for the examples he offered to dispute in coming posts, none of which came anywhere near the sound arguments previously made, and all of which bore the distinct scent of facile strawmen to a few practicing lawyers.
Into the breach stepped Michael Mannheimer, seeking to interpret Miller's point:
Based on some of the more vehement reactions to Eric Miller’s recent post, it seems to me that a lot of us are talking past one another when we use words like “practical” and “skills.” “Skills” are like free speech: everyone agrees it’s a good thing but no one can agree what it is.
Skills? Miller conflated doctrine with practice, but the word "skills" never came up. In fact, the word isn't mentioned at all in Miller's post. And practice and skills aren't necessarily the same thing either, though the separation isn't anywhere as obvious as doctrine and practice.
For the sake of making it just a little bit clearer, I offer my definitions of the language involved. These may not comport with the way the legal academy defines the words, but judging from Mannheimer's post, and the comments to it, they are all over the place anyway.
Doctrine: The rules of law applied to factual scenarios.
Practice: The way things actually happen in court.
Skills: The things lawyers actually do to represent clients.
I know, simple and clear. No doubt the intellectuals are laughing their butts off at my simplistic definitions, but still, without definitions (as is clear from the posts by people far smarter than me), nothing useful gets accomplished.
After acknowledging that the skills of reading, writing and thinking are always necessary for the practice of law, Mannheimer, in a moment of weakness, writes:
But by the same token, one cannot be an effective attorney if one cannot, say, negotiate a plea offer or a business deal. So it comes down to what can realistically be taught in three years and what must be picked up in practice. And, yes, some skills must await practice to be developed. The notion of a lawyer being “practice ready” upon graduation is simply, for lack of a better term, horseshit.
It's nice to see a lawprof speak like a regular guy, right? That's why I added the emphasis. But then, not everyone agrees with this, as reflected in a bold comment by "anon":
After all, aren't posts written for the enjoyment of anonymous prisses? But I digress. The comments to the post provide a number of approaches by various professors at various law schools showing their efforts to integrate skills into otherwise traditional doctrinal courses. For example, Orin Kerr writes:
A comment from a regular reader, which you are free to ignore or even delete: It may seem prudish and trivial, but I enjoy posts less and am less likely to be persuaded when the author includes words like "horseshit."
In contrast, Jeffrey Harrison writes:
When I was in law school, I took a class on Trial Advocacy that included how to give an opening statement, direct and cross examinations, and a closing statement. I think that's one example of skills training. Similarly, in a class in crim pro, skills training might include drafting or responding to a motion to suppress.
While there always remains the question of whether a lawprof is qualified to incorporate skills and/or practice into her teaching, doctrine being the easy part since it's dearer to her heart, what is becoming increasingly clear is that some get it and some don't.
At my school, "skills" evidently includes training in meditation and mindfulness. So, I guess the range is from "Where is the courthouse" to Eastern religion. Of course, teaching skills will not stimulate the demand side of the market. BTW, on the Texas Bar exam when I took it was this: Draft an Indictment.
While Mannheimer is right that no law school can turn out a truly practice ready lawyer, the inclusion of skills and practice into doctrinal courses can at least prepare a student to have a clue what a motion looks like before he's required to prepare one for a client. Think about that request on your listserv from the n00b who asks if anybody has an omnibus motion they can give him? Think about the ensuing argument about whether anybody ought to represent a client when they lack the skill to prepare a basic motion?
The fact that posts like Miller's and Mannheimer's are being written, and generating the sort of commentary they are, is a sign that we may be moving past the days of "Law and Nietzsche," no matter how fascinating some scholars think such a course might be. To get there, however, Mannheimer ridicules the old "70's" final exam question, “The courthouse for [the local] county is located on the corner of ______ and _____ Streets.”
While that wasn't on my final exam, here's a thought: There are likely more than a few students, and more than a few lawprofs, who can't find their way to the courthouse. Is it worth a question on the final? Nah. But it wouldn't kill you to take the kids over the courthouse and see what really happens there. That's practice, and you could point out the street corner at the same time. And with mapquest, you won't have too much trouble finding it.