Cui Bono?

Posted on Categories Legal Education

Last month, Jessica Slavin’s short post on “Things Law School Doesn’t Teach” caught my eye.  Professor Slavin’s post linked to a public defenders’ blog in Connecticut which contained a list of “10 things I didn’t learn in law school,” a list seemingly assembled without a lot of thought, apparently just a bit of lighthearted fun.

The comments to the post, on the other hand, were hardly lighthearted, especially the comments of Professor Papke and John Kindley.

Professor Papke wrote:

. . . I thought the list was cynical to a fault.  Too many lawyers have a sad bitterness and mean anti-intellectualism about them.  Maybe living in debt and working in the context of hierarchy and bureaucracy produces those attitudes.  I wish somehow lawyers could remember law school as a demanding but enriching academic experience.

. . . We don’t want law school to be lawyer-training school.  When we cave in to demands of that sort from the ABA and assorted study commissions, we actually invite alienation among law students and lawyers.  Legal education should appreciate the depth of the legal discourse and explore its rich complexities.  It should operate on a graduate-school level and graduate people truly learned in the law.

John Kindley countered:

The biggest flaw in [Professor Papke’s] philosophy is that law school is mandatory,  if you want to practice law.  The government of most all states will forcibly prevent you from doing it unless you’ve gone through those three years.  It’s not too much to ask, therefore, that there be a close relationship between what is taught in those three years and preparing students for the actual practice of law.  People can think deep thoughts about the law, and pay for the privilege, if they choose to do so, maybe as an elective . . . . But I don’t feel like I or anyone else should be forced to pay for these high-falutin intellectual pursuits in order to practice a profession that for better or worse does not depend on such pursuits.

I was a bit surprised that Mr. Kindley’s comment attracted no responses since it was pregnant with so many issues about legal education.  Should a law degree be required for the practice of law?  All kinds of  legal practice, or just some?  Should three years of law school or the completion of 90 credits be required as a necessary condition for bar admission?  Why not one or two years, coupled with a rigorous bar exam?  Why not make law available as an undergraduate subject of study, as it is in many countries?  Why require a baccalaureate necessitating four or more years of undergraduate study for admission to law school?  Why not three years of such study, or two or none, so long as an applicant passes a validated and reliable qualifying entrance exam and otherwise satisfies admission officials that s/he is reasonably equipped for law studies?  The history of the American legal profession has been in large measure a history of erecting ever higher barriers to entry into the profession and increasing the cost of entry has long been the principal tool of exclusion. What is the justification for the costly barriers to admission to the legal marketplace?  These barriers have developed over a period of many years and have been with us now for so long that we tend to take them as “givens,” but quaere whether some of them should be reexamined and perhaps modified or even torn down.

Mr. Kindley argues, if I understand him correctly, that those who wish to “think deep thoughts about the law, and pay for the privilege” should of course be able to do so, but what is the justification for bundling courses aimed at probing what Professor Papke calls “the depth of the legal discourse  and . . . its rich complexities”  with courses that Mr. Kindley identifies as “preparing students for the actual practice of law”?  He takes dead aim at Professor Papke’s assertion that “[w]e don’t want law school to be lawyer-training school.”  Quaere why not?  With three years’ of tuition costs and average educational debt approaching $100,000 on top of opportunity costs, what is the justification for a curriculum that isn’t aimed at “preparing students for the actual practice of law”?

I should acknowledge that I think that Marquette has done an excellent job in creating a curriculum that offers great opportunities, clinical and otherwise, to prepare for “the actual practice of law” as well as opportunities to probe “the depth of the legal discourse and . . . its rich complexities.”  This is not to suggest, however, that our society would not benefit from a comprehensive and radical rethinking of the legal education industry.   After all, before President Bush and the last Congress provided a bailout to the financial services industry in 2008, they had to bail out (in a manner of speaking) college and professional school graduates from what was for many of them a crushing burden of educational debt.  (College Cost Reduction and Access Act of 2007.)   In terms of legal education, would it not make sense to take a long hard look at methods of reducing costs?  The tuition at MULS has increased by a factor of 26.95 since I matriculated in 1967.  The CPI over the same period increased by a factor of 6.36.  Thus, tuition increases more than quadrupled increases in the CPI.  Is the educational experience today richer than it was in 1967?  Without question.  To acknowledge this truth, however, doesn’t address the issue of whether students who would prefer a less rich and less costly but nonetheless adequate and satisfactory educational experience ought to have opportunities to pursue it.

Lastly, Mr. Kindley argues, pace Professor Papke, that the legal profession “for better or worse does not depend on (high-falutin intellectual) pursuits.”  Professor Papke may (or may not) consider Mr. Kindley’s comments to demonstrate the “sad bitterness and mean anti-intellectualism” to which Professor Papke referred in his first comment to Professor Slavin’s post.   For my part, the pointed exchange between the two gentlemen reminded me of the following:

Since . . . it has been my intention to write something of use to the understanding reader it has seemed wiser to me to follow the real truth of the matter rather than what we imagine it to be.  Imagination has created many principalities and republics that have never been seen or known to have any real existence; for how we live is so far different from how we ought to live that he who studies what ought to be done rather what is done will learn the way to his downfall rather than to his preservation.

Niccolo Machiavelli, The Prince, ch. XV.

and

[L]aw was superb as a code.  And the more perfect and logical a code was, the more magnificent it was.  But this was at the cost of increased artificiality, rendering it less capable of existing in reality.  Hence the opportunity to study and reflect on law offered the greatest satisfaction while the requirement to implement it was the saddest or most painful fate that could befall one.  The practice of law led either to cynicism or madness.  We could see examples of the former all around us and, as for the latter, suffice it to recall Kafka, who, though few realized it, was a Prague lawyer.

Ivan Klima, Judge on Trial (A. G. Brain trans., 1993)

9 thoughts on “Cui Bono?”

  1. Professor Papke has it exactly right. Papke’s critics notwithstanding, I think that his prescription also is not divorced from the proper practice of law.

    As I watch and listen to my fellow practitioners, I see many who have at least the minimal acquired skills necessary to make a living in this line of work: they can read; they can write passably; they can use the basic research tools common to their practice area; they can speak intelligibly (including to an audience of several or many when necessary); and they can accomplish the legal drafter’s equivalent of coloring inside the dark lines, producing documents that usually will avoid or withstand dispute. But all of those skills can be, should be, acquired by a reasonably diligent high school student, or at least by an undergraduate with middling motivation. If nothing else, the actual practice of law in our first years, during which many of us go through an informal apprenticeship of sorts or at least find mentors, should bring those practical skills to an acceptable, if unexciting, baseline.

    But what I notice often missing among my fellow practitioners is the one trait that I would value most as their client: judgment. I hazard here a guess that if most lawyers did not have bad judgment, they would have no judgment at all. The sort of law school curriculum and experience that Papke proposes is the best hope, if not the only hope, for producing lawyers who in time will develop real judgment: nuanced, clear-eyed, compassionate, learned, careful, and good judgment. To explore the depth of legal discourse and its rich complexities, as Professor Papke proposes, is to explore the richness of life itself and of human experience. From that structured and difficult exploration, judgment comes.

    Not incidentally, so too may come an appreciation of law as a calling, not merely a job. Excitement about the fluid and integral relationship between law and human experience may follow as well, rather than the cynical assessment of law and the mechanical approach to it that is the vogue among many practitioners.

    In the end, when I really need a lawyer, I will take my chances with the one who embraces and retains hold of David Papke’s views while she is in law school, or soon after. She is most likely to offer what I will need most: good judgment resting on intellectual curiosity, learning, and deep appreciation of what being human means (empathy, in short). Behind that judgment will follow sound advice. Who knows? If I am really lucky, she even may prove wise.

  2. Professor Papke sounds like he is describing a philosopher’s degree rather than a practitioner’s degree. I signed up for a J.D., not a Ph.D. in law.

  3. May I suggest that the problems debated in this thread come from the apparent fact that that Law School cannot do all that is necessary to turn a law student into a competent lawyer.

    Perhaps the Law should take its cue from Medicine. Medical School does not prepare one to be a doctor, it prepares one to learn how to be a doctor. I am not sure what statistics would show, but I believe that very few Medical School graduates just go out and set up a practice. At least not successfully. AFTER medical school most doctors pass through a rigorous and formal process of internships and residencies before they are ready to go “solo”. It is in these, the Schools of Hard Knocks that medical school graduates learn how to become doctors. I was told once (by a Chief of Cardiology) that medical school’s only purpose is to create interns who are not inordinately dangerous to their patients. A freshly graduated Medical School graduate is not a doctor (the Chief of Cardiology went on to tell me), they are the raw material from which doctors are made.

    I can only imagine that a Sr. Partner in a law firm must look at their new Associates the same way. Or so I hope.

    Law School cannot be sufficient to prepare law students to be lawyers. That much seems to be uncontroversial. It can only prepare them to learn how to be lawyers. So what is the Law analog of Internship and Residency? Are private law firms the Lawyer’s analog to the Teaching Hospital? Why are there not Legal Teaching Hospitals: providing services to clients while formally turning Law School Graduates into Lawyers? If there are none, perhaps we need to do something about that. Private Law Firms do try to fill in the gap for many law graduates, but is there really the legal equivalent of an Intern Lawyer? or a “Residency in Property Law”? or other practice areas? Why not? Is the law really that simple?

    I do not suggest that the Law precisely mirror Medicine, but the problems and conflicting needs Papke and Kindley identify come directly (in my humble 2L opinion) from overloaded expectations of what Law School can accomplish, and from the lack of formal post-law school clinical training. My point in taking examples from medical training is that this is a problem that has already been solved. The Legal Profession need not re-invent the wheel.

  4. Allow me to thank Chuck Clausen for rekindling the discussion of legal education that began on the Faculty Blog in December. I thought the various issues and questions had disappeared into the blogosphere, but I am happy they are back. Allow me to try to refine a few of my points.

    First, nothing I have said should be interpreted as hostility to clinical education. I was one of the elected student directors of the clinical program at my own law school and believed deeply in the enterprise. In the present, I always urge my students to take advantage of the excellent clinical opportunities at Marquette. Self-conscious reflection in the midst of a practice-like experience can be a powerful learning experience.

    Second, I personally distinguish between “training” and “education.” The former connotes a type of coaching, patterning, or even manipulating, but the latter involves the acquisition of knowledge and some degree of mental and even moral growth. In order to be “educated,” one has to engage the process and expend intellectual energy. Law schools in the United States are graduate-level university programs, and they should be more about “education” than “training.”

    Third, when we design or imagine legal education, we should think about what we are trying to accomplish. The best lawyers (and surely the best judges and legislators) have been well educated both in the law and in general. Their educations give them a range of insights, help them exercise good judgment, and serve clients and the public creatively. Assuming the goal of legal education is to graduate the best legalists possible, Jurisprudence is probably the most “practical” course in the curriulum.

    If we want to have a great law school and a great profession, we should not be afraid of becoming and remaining learned.

  5. I made (or at least tried to make) this point when commenting on Professor Slavin’s original post, so I’ll try to make it plainer this time: No course of study in higher education trains a student to “do the job.” All higher education can hope to achieve is to provide a student with the skills needed to eventually learn how to “do the job.”

    An education major isn’t completely ready to teach. An engineer isn’t completely ready to design a new product. A doctor isn’t completely ready to peform surgery. And a lawyer isn’t completely ready to try a case to a jury, or meet with a client, or draft a contract, or any of the other tasks that make up “doing the job” of a lawyer.

    An employer hiring someone right out of school is hiring based on the prospective employee’s potential to “do the job.” The employer knows the skills necessary to “do the job” and hires candidates who possess those basic skills. But the new employee straight out of school has never “done the job.” The employer must teach the new employee how to take the skills used in school and apply those skills to the real world in order to “do the job.”

    The appropriate course of study for a law school (as opposed to a law apprenticeship) is to teach the basic skills that a future lawyer needs to “do the job.” To me these skills include the doctrinal areas focused on during the first year (contracts, torts, constitutional law), communication skills (legal writing, oral advocacy), practice skills (trial advocacy, discovery, and other workshop-type classes), practice experience (clinics and internships), and a broader understanding of the law that Professor Papke calls an “appreciat[ion of] the depth of the legal discourse and explor[ation of] its rich complexities.”

    In short, when I began law school I had no expectation of being fully prepared to “do the job” on graduation day. But I fully expected to graduate with the skills necessary to eventually “do the job” of being a lawyer and I think that a Marquette education has provided me with the necessary skills to quickly learn how to “do the job.”

  6. David Papke, Dean Stang, and others are surely correct in asserting that a modern law school education must consist of more than ‘nuts and bolts’ offerings. Sean Samis is similarly correct in saying that, in very large measure at least, all professional schools can hope to accomplish is preparing their students for entry into their chosen professions where most of their practical and prudential learning will occur.

    I could hardly gainsay Mr. Stang’s assertion that good judgment is the hallmark of a fine lawyer. What he calls good judgment is the same quality, I suspect, that Anthony Kronman, former dean of the Yale Law School called “practical wisdom” in his superb study “The Lost Lawyer.” There is a reason after all why we lawyers are the only professionals who are traditionally addressed as “Counselor.” (Professor Kronman wrote an interesting feature on modern undergraduate education, not entirely unrelated to the comments on the Slavin and Clausen posts, in the Boston Globe at http://www.boston.com/news/globe/ideas/articles/2007/09/16/why_are_we_here/?page=1)

    I wonder however if Dean Stang, who is himself a worthy model of the kind of wise lawyer he describes, proves too much when he says “I hazard here a guess that if most lawyers did not have bad judgment, they would have no judgment at all.” (Emphasis added.) Ditto Professor Papke’s assertion that “too many lawyers have a sad bitterness and mean anti-intellectualism about them.” Most lawyers have graduated from ABA accredited law schools with curricula that contain the kinds of courses that Professor Papke describes as well as the kind of courses that Mr. Kindley describes, i.e., curricula not terribly different from that at MULS. How is it then that these same lawyers have either no judgment or bad judgment and are cynical, sadly bitter and/or meanly anti-intellectual? The answer I think is that law school can do a lot of things but inculcating good judgment or ‘practical wisdom’ is not one of them. Similarly, law school can provide little insulation from cynicism, bitterness and/or anti-intellectualism for those most at risk of these deficits.

    I was in my salad days as a law professor when the Watergate scandal rocked the nation. In its aftermath, much was made of the fact that so many of the criminal conspirators were lawyers: President Nixon (Duke), Attorney General Mitchell (Fordham), G. Gordon Liddy (Fordham), John Erhlichman (Stanford), et al. The news media and the organized bar joined in the judgment that the problem was that these criminals had not been taught ethics in their law schools! Before you could say “I’m depraved because I was deprived of a good ethics course,” ethics became a required course in law schools across the nation. And of course as we all know, all lawyers thereafter became law-abiding. Bernie Madoff attended Brooklyn Law School for a year but didn’t continue. Had he but taken a good ethics course, he surely would have walked the straight and narrow.

    I jest of course but my point is that law school can no more make dishonest people honest than it can make unwise people wise, imprudent people prudent, or people with pinched souls magnanimous. Better to rely on St. Ambrose’s view of the ‘Gifts of the Holy Spirit,’ the first of which were the Spirit of Wisdom, the Spirit of Understanding, and the Spirit of Counsel.

    In any event, I’m afraid that, as journalists would say, I ‘buried my lead’ in my post. My main concern was the cost of legal education and the burden of debt borne by so many law graduates. I think it need not and should not cost so much to get a law degree. The cost issue was raised only inferentially by Mr. Kindley in his reference to what he should “be forced to pay for.” If it be true, as Mr. Samis argues, that law school can only lay the groundwork for the more efficacious learning that will occur once one enters the profession as an apprentice or journeyman, could not that groundwork be accomplished in fewer than 7 or more years of university education and at lesser cost, at least for those who would prefer such an option? I believe that the answer is ‘yes’ and that a combined undergraduate/professional school curriculum that would make such an option available would have enough room for Mr. Kindley’s practice-oriented courses and Professor Papke’s “high falutin” courses exploring the depth of the legal discourse and its rich complexities.

    Lastly, I suspect that many would agree that there is more congruence in courses preparing one for the practice of law and courses plumbing the depth of the legal discourse and its rich complexities than some of the comments in this thread would suggest. Effective law professors of, e.g., torts, contracts, property, civil procedure, con law and so on prepare their students for the practice, of law, surely in the sense that Mr. Samis suggests, precisely by exploring the depth of the legal discourse and the rich complexities of their subject areas.

  7. An interesting fact floated up in my memory when I read Prof. Clausen’s comments about Watergate. Judge John Sirica, who presided over the Watergate case, did not get an undergraduate degree. He graduated from Columbia Prep in 1921 with what Sirica described later as the equivalent of two or three years of high school.

    From there he enrolled at Georgetown Law School (after a brief enrollment at George Washington University Law School). He graduated from Georgetown in 1926.

    For a bio written at his death, go here

  8. I think that, on this issue (if no other), I am in Professor Papke’s camp. Believe it or not, the practice of law does often require some high falutin’ thoughts about law and other things. I don’t imagine that Mr. Kindley would agree, as a condition of a less expensive and more technical education, that he be barred from the type of lawyering that requires it.

    I also was brought from my seat in affirmation by Dean Strang’s thoughts on the lack of judgment. Of course, one can manage to escape law school without any, but judgment requires perspective. During my time in the corporate world – where I did a fair amount of international work – I learned that one of the complaints that American clients have about European lawyers is that they are only techicians. They bring little to the table other than the ability to plead and document. No help on strategy, in negotiation, or in evading what at first appear to be unavoidable stumbling blocks. Although I was able to find some great people to work with (if you need a lawyer in Paris or Copenhagen, in particular, I have names), I found – and both exploited and was frustrated by – the same thing.

    Chuck’s concern about the cost of a legal education is certainly valid although the trend he cites is reflected throughout higher education. I think that results, in part, from subsidies to education that, while they make it more affordable, also raise its price and is also traceable to the fact that as a society becomes wealthier, money tends to get spent on different things. That we spend more on health care and education and less on food and clothing can be seen, not simply as a problem, but as a sign of progress.

  9. I am a 1999 graduate of the University of Wisconsin. I recall that on the first day of orientation the faculty gave us the line, repeated in the comment thread above, that there was just too much law out there to teach us all of it. Therefore, the faculty delivering the orientation endeavored to disabuse us of the notion that they were going to teach us “the law,” and instead were going to teach us how to “think like lawyers.” That sounded reasonable at the time. Of course, anyone walking into a law library can plainly see that there’s just too much law to ever hope learning it all in a lifetime, let alone in three years of law school.

    After almost ten years of practice, however, I am more skeptical of what now kind of strikes me as kind of a cop-out, an unjustified lowering of expectations regarding the kind of practical education that a well-constructed law school curriculum could provide. That’s because I’ve learned a whole lot of actual law since leaving law school, by reading statutory provisions governing the problem I needed to solve, coupled with cases interpreting those provisions. I have to ask myself: even apart from clinical programs, might my time in law school have been better spent by learning as much of this substantive law as I could before I ever got out in the trenches faced with clients who expect me to know this kind of thing already, relative to the time in law school spent discussing such things as the putative policy considerations behind certain laws, and focusing on peculiar controversies in the law that in reality don’t come up all that often in the ordinary practice of law?

    It’s not an all or nothing proposition. Just because we can’t learn all the law there is doesn’t mean that in law school we can’t learn as much as we can. It’s kind of an inside joke among law students that during the summers family members and friends will ask questions about legal problems they’re facing and the law students will be at a complete loss to answer them. Not that the law student should venture to give legal advice, but is it too much to ask that upon graduating from law school the newly-minted lawyer should be able to answer many or most of the run-of-the-mill legal questions that might be asked of him or her by friends or family?

    I think we have to recognize that law professors by nature probably have a bias towards teaching law in a more philosophical framework, apart from what might really help law students in their lives after law school. I know if I was a law prof I’d be more inclined to take that approach. How boring for a law prof to simply say read this section of the code and the cases interpreting it, test in the morning.

    Let me also say this: I am fascinated by the philosophy of law. I also have to say that I’ve found my guiding lights in this area through independent reading and independently of any law prof recommendations. Lysander Spooner is a huge favorite. I doubt that he’s discussed in many law school jurisprudence courses, although I could be wrong. But again, why should someone who wants to practice law be required to study this kind of thing? I can guarantee that if I cited Spooner’s central arguments in his No Treason: The Constitution of No Authority in an appellate brief it would get me nowhere (in fact, it just might get a particularly hostile judge to start questioning the validity of the oath I took as a prerequisite for admission to the bar).

    I’ll also say this: I was on law review and in fact my article was selected for publication in the law review. I found the process to be tremendously worthwhile and a tremendous learning experience, but of course that process was very different than what mainly went on in law school. I think law school would be greatly improved by requiring every law student to write a “thesis” or article for publication, and substituting that endeavor for two years of coursework. With the advent of the worldwideweb, there’s no reason why every law student couldn’t be published in one form or another. By learning through actually producing something of value for the profession, their time would be well-spent.

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