The New York Times Room for Debate raises the question of whether the very old school method, reading the law, provides a “good way to avoid excessive law school debt and create different perspectives on the law?” While the avoiding debt part is obvious, what it meant by “different perspective” is a bit less clear. Are they asking, how does the law look to clueless, incompetent lawyers?
The participants range from Dean Erwin Chemerinsky, who shockingly thinks law school is critical and happens to have seats to fill at UC Irvine law school, to the great legal philosopher, David Lat, whose three hours as a lawyer preceding his glory at identifying tantalizing judicial divas by looking underneath their robes certainly provides a “different perspective” on the law, to Brian Tamanaha, whose Failing Law Schools book was a seminal work.
For those unaware, reading the law or apprenticeship as better describes it, was the normal way to become a lawyer a century ago. In a simpler time, it was generally sufficient for a young man to apprentice with a more seasoned lawyer until he was ready to be entrusted with other people’s lives. That was about 34,000 laws and a million opinions ago.
Today, in the handful of states where apprenticeship suffices to allow a person to take the bar, the results are poor. They fail at alarming rates, and, not to be too rude about it, the bar exam is the absolute minimum competence one would expect. It’s a low bar.
But with the emphasis being spread on law schools’ inability to provide new lawyers with the ability to actually practice, the disconnect between what law schools teach and what lawyers do, plus the cost of law school in light of its return on investment, the efficacy of reading law is being given a second look.
Lat, after taking the less-controversial position that a combination of law school and apprenticeship would be best, goes down a curious hole:
But even apprenticeship as a standalone option is worth having on the table. It’s hard to say whether apprenticeship is better or worse than law school, at least when you take cost into account. True, apprentices fail the bar exam at a much higher rate than graduates of A.B.A.-accredited law schools, but at least they don’t have the same debt burdens as law school grads.
So the future of the profession should be incompetent but debt free? Similarly supporting a mixed approach as best, Tamanaha also supports apprenticeship as a direct path:
An apprenticeship is a sensible pathway to the legal profession because an essential way to be trained as a lawyer is by engaging in supervised legal tasks in actual legal settings.
Unfortunately, apprenticeships are perceived as inferior, rather than as a legitimate alternative means to becoming a lawyer. Because apprenticeships are discouraged, few people sign up and the quality of supervision varies.
It’s unclear how completely ignoring a doctrinal foundation of knowledge before “engaging in supervised legal tasks” makes apprenticeship sensible. Nor is it clear that the cause and effect, apprenticeships are discouraged results in dubious quality of supervision, is accurate.
One thing that comes out of this discussion as fairly clear is that the optimal training for a new lawyer would involve both a legal education, where students can gain a doctrinal foundation in law and, dare I say it, learn to think like a lawyer, before moving into practical training so they learn how to be a lawyer.
But this ignores a huge, gaping hole in the training of lawyers; When the United States went from an apprenticeship approach to a law school approach, we went all in. Unlike some other countries, we never established an articling/pupillage process, where law students went from school to a position as apprentice in the normal course of affairs on their way to becoming a lawyer. Sorry to say, but the Brits (yes, even the Canadians) do it better than we do.
As fabulous an idea as it may seem to create a law school/apprenticeship process now, it’s a functional impossibility. Had it always been the way, perhaps lawyers would have accommodated the duty to train new lawyers in the costs and structure of their practices. But we didn’t. Now, we lack the real estate, the finances, the tolerance and the competency to do so.
Contrary to the assumptions of those who don’t practice law, this is not a nation of 1000 lawyer firms, but of sole practitioners and small firms who work hard, keep costs under control, and struggle to make ends meet. There is no room to take on a gaggle of law students, all bright-eyed and delicate, who want a desk, a modest salary and a tummy rub. We have clients to represent, and they come first, no matter how much the lack of constant positive attention will make law students cry.
So the best answer, the combination of law school and apprenticeship, provides a great philosophical response, but like pretty much everything else in a discussion of legal education, doesn’t sync well with reality. Notably, the New York Times didn’t bother to invite anyone who actually practices law to participate in the debate, which could explain why nobody involved realized this.