Taking The Law Out of Harvard Law School

 

An article last month in The Harvard Crimson (“The Changing Face of the Law Professor”) explained that, fifty years ago, the typical Harvard Law School professor was someone who knew a little about the law but nothing about how it works:

 

“Somebody who got into a top law school, did very well and then completed a prestigious clerkship was well situated to be hired on the basis of those credentials,” said Law School professor Richard H. Fallon, who attended Yale Law School and clerked for U.S. Supreme Court Justice Lewis F. Powell.

 

These days, however, the typical Harvard Law professor is someone who knows a little about the law, a little about something else, and nothing about how either works in real life:

 

Now, however, the Law School looks for a greater breadth of academic qualifications in its prospective faculty, including “demonstrated scholarly accomplishment, a promising research agenda offering both relevance to legal analysis or law practice, and an ability to present and effectively defend a thesis or argument before faculty members,” according to Law School Dean Martha L. Minow.

 

Notice the elephant not in the room: a prospective faculty member does not need to show any ability whatsoever to practice law, nor any ability to effectively teach the law to students. They can get by with “scholarly achievement,” “a promising a research agenda … [relevant to] legal analysis,” and an ability to charm other faculty members.

 

Only legal education tolerates this sort of circular, self-referential pedagogy in a practical field. Doctors are trained by practicing physicians. Even “academic medicine” is closely tied to the actual practice of medicine by way of teaching hospitals and clinical research. Would you learn how to design and build cars from people who had never designed one before?

 

This isn’t a new issue (the impractical nature of legal education has naturally been the focus of intense legal scholarship, none of which produced any useful change), and Harvard Law’s approach is by no means unique to them. Law schools across the country have increasingly considered experience to be unnecessary. That’s not new.

 

What’s new is to see the law school that produces the most politicians, the most federal judges, the most law professors, and, with one of the largest graduating classes of any law school, a helluva lot of practicing lawyers, look out on the dismal field of legal instruction and then tout inexperience and non-legal scholarship as virtues. It’s a smack in the face to everyone who has tried to fix the problems with law school, and it creates two big problems, one for the quality of legal practice, the other for the health of our democracy.

 

A lawyer must be an autodidact. They must teach themselves about the client’s situation, and then teach themselves (or at least refresh themselves) on the law that could bear on that situation; only then can they begin to effectively represent the client.

 

One response is to decide, as HLS has, that it will “focus less on stuffing our students[’] heads completely full with what the doctrine in different areas of law looks like,” and then “turn[ ] to tools from other disciplines, including economics, history, literature, political science, psychology, and statistics.” (Those quotes come from Professor Geiner and Dean Minow.)

 

This approach has superficial appeal. A common cliche is to say law school teaches students “how to think like lawyers,” so, instead of making them memorize a bunch of legal rules, why not expand their minds with the teachings of various theories?

 

The problem with this Malcolm Gladwell approach to law — i.e., leaving the details and substance to others while you cherry-pick broad concepts that suit your preferred conclusions — is that it misses the essence of what lawyers do. No practicing attorney claims that the practice of law revolves around the memorization of doctrine. The practice of law is about the application of doctrine to the facts at hand.

 

If you want to learn how to paint, to “think like a painter,” you can spend years looking at paintings and reading about paintings and studying everything from architecture to optics to cognitive science, but there is no substitute for picking up the brush, and no substitute for the guidance of a painter who has painted a thousand canvases.

 

If you need surgery, you want the doctors around you to be learned and thoughtful and open to new ideas from other fields, but there is no substitute for the surgeon who has done your procedure a hundred times before, and no substitute for the surgeon who did it a thousand times before and then trained your surgeon.

 

When legal scholarship and legal instruction moves even farther away from the practice of the law, it loses the essence of legal practice: mastering the application of ambiguous legal doctrine to complex factual situations. The effective application of the law to facts — and the ability to persuade others to apply the law that way — cannot be a mere after-thought new lawyers are expected to fit into the half-baked, Malcolm Gladwell-esque understanding of “economics, history, literature, political science, psychology, and statistics” they’ll get in a class or two at HLS. It is what they will do throughout their careers.

 

This would just be a problem for HLS and its graduates as they enter the world with a wholly erroneous understanding of how to think like lawyers, but Harvard is no ordinary law school. Harvard could forego legal instruction entirely and become a finishing school and, due to its position, still attract many of the best and the brightest, who will then go on to take important positions in our society. HLS’s elite position makes its defective academic focus a problem for society beyond its Bauhaus-inspired, ivy-covered walls (not that there’s much ivy on the law school campus; my wife is an alum and so I spent a lot of time there).

 

If this is the future direction of legal education, then we should have less of it. Most of the calls for reducing law school from three to two years focus on its high cost and graduates’ dismal job prospects. With elite law schools, though, even if a graduate is more likely to secure a lucrative job, each year in which the student is taught to elevate superficial insights from other fields over the application of law is at least counterproductive, if not outright harmful.

 

 

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  • Alumna

    I enjoyed my three years at HLS (ten years ago), but it wasn’t a particularly useful education. The first year core classes introduced me to legal concepts I hadn’t known before, but the final two years were a waste. Our professors knew very little about the practice of law and were quite comfortable with their ignorance. Virtually all of them had clerked for judges, including many Supreme Court justices, but that was the full extent of their interaction with real lawyers (the lawyers arguing before those judges–not the judges!). Only a few of the tenured faculty would’ve ever had clients. A professor once told me that it would be very difficult to get an elite position in legal academia if I practiced for more than 5 years. Well, I guess that ship has sailed! Not only am I over 5 years of practice, but I also don’t have a PhD in a field with virtually no practical application.

    Some of my professors were JD/PhDs, and I actually liked the interdisciplinary approach. It felt like undergrad. However, none of those classes have influenced the way I practice the law. Most of those skills I either learned in kindergarten or on the job.

  • Chen Kasher

    You’re preaching to the choir. Anyone reading this blog is likely to be a practicing litigator (most likely on the plaintiff-side) who values an excellent cross-examination more than an abstract discussion of hegemony in bankruptcy law or other law school nonsense.

    The problem here is much bigger, though, and it’s that practicing lawyers are not policymakers. Whenever you interject the word “should” into a class, and start to discuss policy, you’ve already lost. Our job, as you state, is to apply already existing law or cobble together a favorable interpretation of it.

    On the other hand, the “elite” of legal academia view law entirely through the lens of policy. Their job is not to take the law as it already is — that would be boring and not justify their pedigree — but to ask how it can be molded, corrected, and improved. This is an “elite” job, but one reserved to only a very small percentage of lawyers. And yet law schools across the spectrum train their lawyers to perform this very specialized and “elite” job.

    • Alumna

      It’s concerning that the law is being “molded, corrected, and improved” by people who have never even tried a case! They don’t know how their advocacy could affect real people (and some don’t care).

      • Chen Kasher

        I’ll play devil’s advocate for a minute and say that lack of trial experience is not important for their purposes. Trials are all about presentation of evidence, and the law takes a backseat until closing arguments and the reading of jury instructions.

        Rather, legal academics will argue that they are asking the big questions about whether laws are effective and correctly interpreted. For instance, does the FDCPA actually result in fewer bad debts being pursued? Are creditors better off for it? Are debtors? Are there potential revisions that could make the Act more effective?

        These are interesting questions that practitioners just don’t have time to ask in the day to day. When a plaintiff’s lawyer represents someone in a FDCPA case, they are looking to establish the appropriate violations by subpoenaing phone records or questioning the creditor’s representative witness. The idea of liquidated damages of $1,000 for a violation had to come from somewhere — and it wasn’t from a great trial attorney.

        You can see why law schools would want someone with, say, an Economics PhD. to answer these questions. No practitioner is the appropriate authority.

        However, I think these interesting questions don’t belong at law schools. They belong at think tanks and public policy type organizations. Law “professors” should be getting hired there.

        • http://www.litigationandtrial.com/ Max Kennerly

          The problem is that “big questions” in the law can’t even be understood, much less answered, without substantial experience seeing how these issues play out in the real world. It seems much of legal academia operates off the premise that the actual practice of law is easy and simple, and thus the real intellectual work is done in the abstract. I think the truth is exactly the opposite: it is far easier to ruminate about the law in the abstract than it is to concretely apply it to messy facts.

          Like the mathematician John von Neumann wrote, “A discussion of the nature of any intellectual effort is difficult per se – at any rate, more difficult than the mere exercise of that particular intellectual effort. It is harder to understand the mechanism of an airplane, and the theories of the forces which lift and which propel it, than merely to ride in it, to be elevated and transported by it – or even to steer it. It is exceptional that one should be able to acquire the understanding of a process without having previously acquired a deep familiarity with running it, with using it, before one has assimilated it in an instinctive and empirical way.”

          I believe the same is true of the law: it is rare that someone can acquire an understanding of the law without having previously acquired a deep familiarity with the actual practice of the law.

  • http://www.iptrialssc.com/ @WesFewSC

    According to WSJ, law school apps lowest since 1977, so even with the 3 year delay and denial of aspiring lawyers that they will not have good jobs, the market is responding to reality, which is good. However, the impact of this is likely very small, if at all, on Harvard and other elite schools.

    It would be interesting to see results of polling of elite academics on core issues of law practice like jury trial. I would expect there is an underlying “contempt” for allowing wage earners and housewives to decide cases.