Stanley Fish from Yale may be perpetually late to the party, but that doesn’t mean he’s not going to have his say. In his New York Times opinionator column, Fish weighs in on the never-ending argument against David Segal’s article calling out legal academia and the Times’ editorial calling it a crisis. To save space, Fish lumps it all together.
The question asked by an article and an editorial published recently in this newspaper is whether what my students have learned will be of any help to them when they enter practice. At first glance the answer seems to be “no,” if only because Berlin, Locke, Rawls, Hobbes, Kant, Unger and Rorty (writers whose work took up half the semester) are not currency in legal arguments; citing them in front of a court or in a memorandum is likely to be regarded at best as window dressing and at worst as showing off. (Not to mention the fact that few practicing attorneys are likely to be engaging with religion-clause issues anyway.)
It’s always nice to start a discussion with a strawman, given that the issues raised were a bit broader and more fundamental than mere utility, such as the reality that students leave law school incapable of performing any function of a practicing lawyer, rather than merely questioning the efficacy of a particularly obscure area of study. But that aside, Fish proceeds.
One can, however, make the case that the practice of law is more than a technical/strategic exercise in which doctrines, precedents, rules and tests are marshaled in the service of a client’s cause. The marshaling takes place within an enterprise that is purposive. That is, law is more than an aggregation of discrete tactics and procedures; it is an enterprise informed by a vision of how the state can and cannot employ the legalized violence of which it is the sole proprietor. That vision will come into view in the wake of a set of inquiries. What obligations do citizens owe one another? How far can the state go in enforcing those obligations? What restrictions on what the state can do to (and for) its citizens should be in place? How do legal cultures differ with respect to these issues?
An interesting formulation, given the incongruent mix of questions. After all, the obligations citizens owe one another is clearly important to understand everything from torts to criminal law. How other legal cultures differ from ours? Not so much. An interesting discussion for a day, perhaps, but a diversion from hard work, like a human interest sidebar in a newspaper story. We enjoy it, but unless we’re chatting with some Swedes at a cocktail party, it never comes up again.
Fish, using an analogy that proves he’s not a New York Giants fan, contends that understanding the law, as opposed to merely “doing it,” requires a deeper grasp.
So it is with law. The expert practitioner is expert in part because when he listens to a client or walks into a courtroom the field of action is already configured for him by an internalized understanding of what could possibly be at stake in proceedings like these.
This must be an extraordinarily deep idea, as I lack any clue what it means. But Fish finally comes to the gist of his argument:
In his response to Segal’s essay, Brian Leiter, a professor of law at the University of Chicago, rejects the question of whether what one learns in law school is of any help: “The criterion of scholarly inquiry is whether it makes a contribution to knowledge and understanding, not whether it ‘helps.’” Leiter adds that what he calls “genuine” knowledge often does help with “a host of concrete and practical problems.” But he refuses (rightly, I think) to justify the academic study of law on that basis, for, he explains, “it is the central premise of a research institution that the measure of its achievement is the quality of the scholarship, i.e. its contribution to knowledge — whether of law or biology or literature — not its practical payoff in the short-term.”
The emphasis on practical short-term payoffs has already laid waste to the traditional project of the liberal arts, which may not survive. Is the law next? The law is surely a practice but it is also a subject, and if it ceases to be a subject — ceases to be an object of analysis in classrooms and in law reviews — its practice will be diminished.
This is where Fish lays it on the line, and the line is drawn as brightly as Leiter possibly can. Perhaps there ought to be a course of study in the academic art of the law, maybe leading to a very impressive Ph.D. and useful in developing the next generation of scholars to teach their intellectual descendants. But this ain’t law school.
The glaring failures of Fish’s argument (and Leiter’s, upon whom he relies), is that few, if any, of the students paying for space in their classroom are doing so with the intention of pursuing the “academic study of law,” as if it was an extension of their liberal arts education, a wonderful way to prepare for grad school or a position in the food service industry. Theses students comes through the door for the purpose of learning how to be lawyers, to practice law.
Is a decent understanding of the theory behind the law important to the practitioner? Sure. It’s interesting, fun and helpful when pulling up that “internalized understanding” of what’s at stake. But it’s neither and either/or proposition, and its most assuredly not a Ph.D. program in deep legal theory, while practicing lawyers learn their craft somewhere else.
What makes Fish’s attempt to defend against Segal’s view unavailing is that he dreams of a school that teaches something wholly different than his students are there to learn. So if Yale wants to create a grad program in legal theory, leading to a glorious Eli Ph.D., who’s stopping it?
I suspect the classroom, with Fish at the lectern, will be empty, as it’s a degree only an academic could love. But hey, maybe there’s a budding scholar or two who will happily attend. It just won’t be law school students, as they plan to be lawyers, not legal philosophers, in the perhaps vain hope they can some day find work and change the world.
Notably, even Fish’s source of inspiration, Brian Leiter, felt compelled to add in a caveat to distance himself from this lovely Ivory Towered vision:
12/13 UPDATE: I appreciate Professor Fish’s link to this piece, but I should emphasize that my point is that immediate practical utility is not the benchmark for serious scholarship; law schools should, of course, also teach lots of things of practical utility, and they all do.
Whether “they all do,” and whether they all do so to the extent that’s needed to produce budding lawyers capable of doing lawyer-type stuff as well as thinking deep lawyerly thoughts, is indeed the question. From the perspective of the legal scholar, whose connection to the practice of law may be distant, or even non-existent, law schools may seem pretty darned tradeschool-like already. From the practitioner’s chair, there is a long way to go before you would trust a graduate to find the courthouse.
But Fish’s argument, too extreme even for Leiter (and that’s extreme, baby), provides an excellent opportunity to see just how far apart the academy is from the trench. The breeding of baby scholars is fine, provided that’s what they signed up to learn and they’re happy completing their education fully-equipped to recite Kant but incapable of drafting the simplest of motions. Maybe there is a need for universities to create a new program designed to study the academics of law. Maybe there is a demand for such a course of study, comprised of the liberal arts of law.
Just don’t call it law school.
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I don’t see law schools reforming.
The crisis of law schools not teaching enough basic substantive law to pass the bar is solved by BARBRI, selling a program that teaches the basic law in a straight forward 6 week course.
What is needed is a program, perhaps 6 months long, by NITA or ATLA, that is keyed to particular practice areas and teaches substantive knowledge in a straight forward non-academic way. Big law firms can pay to enroll their first years (solving the problem of corporate clients legitimately refusing to be ripped of by billings from no nothing lawyers). Unemployed young solos would have to pay, but it might avoid Rakofsky type incompetence.
You’re young and inexperienced, which explains your confusion. This wasn’t the way law schools were always run, but a relatively new phenomenon that developed over the past 20 years, before which lawprofs were less enamored with their intellectual and scholarly pursuits and more concerned with producing competent lawyers.
It can be changed, but the first thing needed is to end the adoration of scholarship for its own sake, the elevation of intellectualism over all else and increase the demand that law schools serve the purpose for which students attend. Your idea, that we just give up and shift the burden onto law firms and law students, is unacceptable. Students have already lost three years of their life, carry a huge debt burden, and it is outrageous to suggest that the only solution is that they suffer more time and expense to obtain what they thought they were getting from law school.
Surrendering is not the answer. The problem is certainly fixable, but not by anyone who takes the path of least resistance and just gives up.
More proof that one can be brilliant and have no idea what is going on. (e.g., Fish & Segal). You are merely brilliant.
People have complained that law schools do not teach students the practicalities of law practice for decades–way more than 20 years. In the past two decades students have had more opportunities for clinical experiences, externships, and summer employment than ever before. There are many reasons for problems now, but one is surely that lawyers who were mentored by older lawyers themselves do not want to do that for younger lawyers coming after them. Law schools have never turned out “practice ready” graduates.
So says an anonymous commenter with no support whatsoever? I’ll alert all the folks who’ve been thinking, writing and supporting their view that they’ve been wasting their time, and need only read your bald assertions that fly in the face of everything previously known. They will no doubt be relieved, as am I.
Sometimes I think that this law school isn’t training young lawyers problem and the two sides to it (say, Leiter and Fish on one side, Campos and practitioners on another) is just a matter of degree. Law students don’t need the professors to teach them how many copies of an order to show cause to bring down to the courthouse, there’s a nice handwritten sign right there in the clerk’s office that tells them. But it might have been nice if the appellate decisions we read weren’t treated as if they were born of immaculate conception and if students were given more of a feel for practice- maybe not how many copies of a motion to bring to court, but what the motion consists of, e.g., a memo of law (what your legal writing professor might have called a brief) and some affirmations and affidavits establishing the facts of the case. This stuff can be taught anecdotally if the professors telling the anecdotes have that experience in their quiver of anecdotes, but that’s unlikely to happen when their big experience was getting a phd in history.
I think you’re right. There’s plenty of room in law school to do enough of it all to teach theory hand in hand with practice, but you’ve hit on the biggest stumbling block, lawprofs who have the experience and will to do so. This is where the question of adoration of scholarship comes in. Nobody ever got tenure for being a great teacher. People with solid practical experience are despised by the Academy, and at best get adjunct positions where they’re treated like dirt since they aren’t “scholars.”
There is a massive paradigm shift in what’s valued in the Academy that needs to happen before law schools will start doing the job they’re supposed to do.
Still, the problem seems to be more that in the past, law firms (and, well, other practicing lawyers) were willing to groom newly-minted law school graduates, taking that burden away from the law schools. But this became a problem when (a) the law schools started producing too many lawyers for the market to handle, and (b) the lawyers decided giving new graduates on-the-job training wasn’t good business, largely because of the bad economy.
Was anybody complaining ten years ago that the law schools weren’t teaching the students how to be lawyers?
It’s part of the problem, certainly, though its not just that Gen X is too lazy and self-absorbed to groom Gen Y, but Gen Y doesn’t want to be groomed. They know everything, and nobody has anything to teach them. Mentoring is a two way street.
That said, it still doesn’t cover the shift in academia away from teaching and into scholarship, and away from lawyer who practiced in courtrooms to scholars who thought hard in libraries.
Perhaps the paradigm shift can come from donor alums who are tired of veiled contempt for what they do.
The trade-off is the erection one gets from seeing one’s name on a chair or building.
Good point.
My mother told me I was “special.” Sort of the same thing, right?
Knowing “how many copies of an order to show cause to bring down to the courthouse” is one of thousands of bits of knowledge that comprise the knowledge base of a competent lawyer.
Understanding that it is possible to map different facts to the same statutory law and reach a different conclusion, and that there are at least two ways to argue every point, (i.e. “legal theory”) is also a small part of the knowledge base of a competent lawyer; one that is blown way out of proportion by law professors.
I personally would have paid a lot of money for a good lawyer to write down all of the little rules, from how many copies to bring to court to how to do a killer cross examination. I would’t pay a dollar to listen to Stanley Fish babble about nothing.
Well, certainly the law schools make a nice punching bag. Biglaw deciding that paying newly-minted lawyers $160k a year for on-the-job training is certainly defensible. And nobody seems to want to take Gen Y to task for their know-it-all, instant gratification attitude (full disclosure: I am a member of Gen Y. And, to be frank about it, the Baby Boomers deserve some blame for raising their kids to have this attitude; many people in this generation have had everything handed to them their entire lives and society then expects them to act any differently once they’re adults. Also, many Gen Y-ers seem to think that their parents waltzed out of college into a cushy six-figure job.)
On the other hand, I’d also point out that heavy student loan burdens make it not economically viable to work as an unpaid intern. Perhaps the new student loan repayment laws will have some effect, though they won’t change the attitude.
I call BS. I take Gen Y to task about it all the time. And I also accept the blame, as a Boomer, for producing such slovenly creatures by doing everything short of chewing their food for them. Give me a little credit, will ya?
As for working as an unpaid intern, anything a kid lawyer can do to get experience is worth doing, and is better than sitting on the couch in mommy’s basement playing Skyrim and eating Cheetos.
Not that I’m in the Fish camp, but knowing how many copies to bring can be learned for free- they’ve got a sign.
Doing a killer cross examination is something that is learned over time, through experience. Lots of it. You can get the basic concepts of it in law school. For example, I understand that the owner of this blog gives a basic initiation in the subject to Cardozo students.
Stanley Fish is actually interesting. Maybe not well suited to be teaching young people how to be lawyers and serve clients, but worth listening to- though that may be a matter of personal taste.
I suppose that my point is that we don’t need a fundamental restructuring of law school, e.g., today we’re going to learn how to staple a blue back. We just need to make sure that the law school world is part of the legal profession world, not the academic scholar profession.
There’s a broad spectrum of practical knowledge to be learned, and far too much to worry about how to staple a blue back (though it wouldn’t take someone long to explain it). The point is that we’re always arguing about either extreme of the spectrum, as does Fish, when the answer is that we can cover most of the spectrum if that’s what law school and their profs decide to endorse and reward. Fish thinks otherwise.
Oh, I know you do. I was referring to the mainstream media, which would rather blame the law schools than admit that maybe some of this is our own fault.
I knew kids whose parents bought them a brand-new car for no other reason than that they turned 16 and could legally drive. Are you surprised that someone like that would turn out to expect everything in life would be handed to them?
Agreed that working, unpaid, for another lawyer is a better idea than sitting in your parents’ basement. But when you assume you already know everything you need to know about practicing law, why work unpaid for another lawyer when you can just get unwitting clients to pay you?
I don’t know what it was like at other law schools (or across different decades), but I found the co-op system at Northeastern extremely helpful in learning “the practice” of law. The program was traditional for the first year (9 months of the core-6 subjects) and then you rotated back and forth between 3 months of full-time study and 3 months of full-time work/co-op. The co-op sessions were out-placements from the school (no full-time clinics, that is) and they varied from awesome to worthless, and paid to volunteer.
For me, I spent my first summer interning for the US Attorney’s office in Manhattan (not helpful, I did little work and was stuck with a bunch of students from other schools). The next winter I interned for a federal district court judge in Boston. That was ridiculously helpful. I was there with the judge, his secretary, his two clerks and that’s it. I ate lunch with them every day, I attended every hearing and trial and I watched other lawyers work (and watched the judge do his job in reaction to that). It was also helpful because he placed a phone call to a judge friend of his and helped me get my post-JD full time district clerkship.
The summer after that I did a typical BIGLAW summer internship – worthless to the practice of law, and my final winter I worked for a small firm and watched them grind. It was all part of the education.
Interestingly, our first-year skills and writing class was essentially taught by 2Ls and 3Ls (I was a teaching assistant) and overseen by two professors with lesser-tenure than the substantive law profs. We took a case from start to “finish” – I got to do one and teach one. I thought that pretty helpful.
The professors I loved the most all ran their own clinics – so they were as dedicated to the “practice” side of their day-job as the academia side. Northeastern isn’t blessed with the most published professors – and I benefited from it.
Was I prepared for the practice of law from those 4 co-ops and various courses? Of course not. But, I felt like I was ahead of my peers for having done it, but I had counseled clients, worked with other lawyers, done a complete and thorough job well before my Harvard co-clerk ever thought about actually practicing law.
If there’s an argument that says legal education can be fixed, my experience supports it. Knowing what I know now, I’m not sure I would have chosen to go somewhere else, even the more prestigious schools.
As long as we’re straight.
Cool story, bro.
Your mother used “quotation marks.” I didn’t.
It’s pretty bad that for my first two years of practice, I found myself thinking… “I wish there was somewhere I could practice this stuff. Like maybe try a case where a real stuff isn’t on the line, or maybe take a mock deposition and then have someone show me how to use this transcript at trial. Sure wish I had some practice at this before being thrown into the fire, where real stuff was at stake.”
In hindsight, maybe that should be called “law school”, a place where lawyers can go be trained in both theory and practice.
There is a lot of hate for law firms, but they are a good place to take depositions of irrelevant witnesses, try small cases that the client knows they’re going to lose anyway, and to draft and argue motions that are ultimately meaningless anyway. Provided, of course, the client knows that’s what’s going on. Normally they do, at least the sophisticated ones anyway.
Also, I took a NITA CLE on depositions last year. It was integrated with young lawyers and law students. Great idea — us baby lawyers could ask stupid questions without getting laughed at. (“Can you ask someone getting deposed about their answers to interrogatories?” “What are the usual stipulations?”)
“What are the usual stips?” Wouldn’t it be great if you didn’t have to let the other guy, not to mention his client, know you were a scrub by asking that?
I guess it’s better than just saying “Ususal stips? Uh yeah, sure!” only to later realize that you also waived the right to have your client review the transcript, and there are inaccuracies that the client feels should be corrected.
Or better yet, agreeing to the usual stips and then spending an entire discovery deposition objecting to hearsay, relevance, foundation, asked and answered, leading, my favorite objection — “look at me I read the rules of evidence, falls within the CATCH ALL!”.
If you’re a n00b and you don’t know what something is, might as well ask and look stupid instead of trying to pretend like you know what it is, only to have it become painfully and embarrassingly obvious that you had no clue…
There’s such a strong urge to feign knowledge rather than let others know that you that you’re unfamiliar. It happens with things like “usual stips,” or waivers at arraignment and speedy trial, where lawyers unfamiliar with the “insider lingo” just go along even though they have no clue what they’re agreeing with.
Very dangerous, very stupid, and yet it happens constantly. No one wants to reveal himself as the scrub in the room.
In my opinion, the biggest benefit to a wholly practical approach based law school would be it would be so boring that many people would drop out quickly – I know I would have. I base that based on the fact that legally a person can take the Virginia Bar Exam following an appretenticeship program called “reading for the law.” Very few people even attempt the apprenticeship program for law – its considered to be much more difficult than going to law school and it takes a lot longer.
Of course, the ultimate root of the problem of there being too many lawyers really appears to be that law school and the bar exam is actually extremely easy.
I agree. The cost may be fairly steep, but the bar is set awfully low.
And the consequences of not doing what you’re supposed to are a joke. If you mess up in practice, you can get sued, humiliated in front of your colleagues, or even lose your law license. There is no pass for doing it right 99% of the time. You don’t get points for “class participation” (i.e. trying really hard). If you get a serious DUI or do something really stupid, you don’t get kicked out of school, you lose your livelihood.
If you fail the bar exam because you’re unprepared, meh. You take it again. If you fail a class because you just didn’t show up, you take it again. If you get bad grades in law school, you go work for someone like Scott Greenfield. 😉
People say law school is stressful… pfft. Practice is stressful because the consequences are much more dire.