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.
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Scott, I learned this valuable lesson Bruce discusses in undergraduate school. I went to Newhouse School of Public Communications studying advertising. After my first year I went to our local paper for a summer job and he asked me what I knew. I told him everything I had been taught. He said, ‘go back to your school and have them teach you something practical.’ That second year I volunteered for every scut job in town so I could learn what it was ‘really’ like. This continued until I graduated. As a result, while everyone else was waiting upwards for a for that great job in New York City based upon their ‘education,’ I was employed by one of the top 10 ad agencies in New York city within two weeks because of my ‘practical’ experience.
It’s no different in law school.
(After I graduated they no longer permitted students to get ‘internships’ before their sophomore year because they didn’t want their students going out into the community without being ‘educated’ first.
Have we go the chicken/egg this going on?
WAKE UP!
Ok. Clarification…’waiting upwards of a year to get a job’… and ‘have we got the chicken/egg thing going on.
(I’m typing waaaaay too fast.)
Coming from an extremely biased W&L graduate who took part in a clinical program there, I believe they will have “real” professors teaching the 3L clinics.
That’s how most of their clinics have been operating. The one I was in had a non-tenured (tho this might have changed) faculty member (who was excellent! Is excellent!) to run the day-to-day stuff, plus a beloved big name who taught the class and came to debriefings, and one admin who was (is!) fantastic. After he retired, his position was filled by other professors (both with named professorships).
The admin, in particular, was an interesting part of my education there. Most of us in the program were women. We had all had a version of the admin job at some point in our past lives. It was very difficult for most of us to delegate anything to her. Not only were we used to doing it all, we were (are!) friends with her so it was not easy.
Anyway, to answer your question, I believe W&L will staff the 3L clinics with FT professors. (The exception is legal aid, because this takes place at the actual office in town and it already has a staff.) Check out the list of professors thus far; one of them also happens to be the dean: http://law.wlu.edu/thirdyear/page.asp?pageid=653.
First, I think we exaggerate the paucity of skills training in law school. My law school was far from a leader on the “skills front,” but in my third year, I took a year of trial advocacy and participated in moot court. I also took classes like administrative law, federal courts and commercial law which helped me in practice and the bar exam, wrote a scholarly paper (on Henry Habermas and Critical Legal Studies and the Supreme Court’s sodomy decision later overturned for reasons I predicted), ran an underground newspaper and started a resume and cover letter service for my fellow students that earned me enough money for a post-graduation trip to Europe. I valued all of these experiences and would not have wanted to forego them to be forced to work at a clinic or learn how to balance a trust account. And all of these skills – the moot court, the trial ad, the writing and entrepreneurship have helped me in my practice.
So while I’d make a skills program available, I am very much opposed to making it compulsory.
Carolyn, I’m not trying to be flip on this, I promise. But if a law school wants to make it compulsory and a student doesn’t want that curriculum, there are many other law schools for them to choose from.
If a dean would like to differentiate his school this way based upon his or her beliefs about law school education and the faculty supports it, if it’s not to a prospective students’ liking they have any number of choices in the alternative.
For far too long, students who wanted this type of education had no choices. Rather this school be populated with like-minded students who benefit from its direction then those who begrudge the offerings, no?