Law in Contemporary Society

A Student's View on Effective Legal Education

-- By KristineVanHamersveld - 25 Apr 2009


This essay will explore the way in which law students learn under the current system of legal education, from the point of view of someone who is currently learning under that system (and who, ironically, wants to be a law professor). It will then explore the various pitfalls of the current system and suggest possible solutions to the general problem of the format of learning in law school.

Acquiring Legal Knowledge Under the Tripartite System

In his discussion of primitive education, Veblen describes a system for the transmission of knowledge containing three crucial entities: the supernatural power, the priest, and the community. Priests connect the two entities, because they are both (a) part of the greater community and (b) though to have some esoteric knowledge of the supernatural. It is thus to his overwhelming benefit to keep the knowledge largely esoteric, even if he has been charged with conveying it to the community. Veblen continues by describing the nature of the knowledge disseminated to the community under this framework as largely confined to ritual and related to “the most proper, most effective, or most acceptable manner of approaching and serving the preternatural agents.” Thus, the knowledge conveyed to the community by the priests is not only confined to the realm of service to largely-if-not-entirely-made-up beings, but the priests have a large incentive not to disseminate it fully, except to train future priests who will repeat the deleterious cycle. Very little imagination is required to transfer this early education framework to the arrangement of the modern elite law school. Instead of gods, priests, and community members, we have judges/scholars, professors/scholars, and students. The system works the same way. The judges and justices are venerated by law students almost to the point of mythological deities, and the professors exist to teach the students how to best engage with work of the judges (for the most part, the case opinions). The only important difference, which may or may not even be a difference depending on your view of cosmology, is that there is much more of a fusion between the priestly class and the gods. Indeed, many judges were once professors, and both groups are actively contributing to the field through legal scholarship. This nexus only makes the system more self-reinforcing, and thus more dysfunctional for the students. Here the professors have a selfish incentive to teach students the “classics” and encourage students to venerate judges and legal scholars. In the end, law students, like community members, are being taught largely ritualistic knowledge that pertains little to lawyering, and much more to a circular propagation of judicial theory and legal scholarship.

The Problem of Acquiring Knowledge in the Current System

Just as in Veblen’s description of early education patterns, the main complaint about law school education is that its not teaching students what they actually need to know. This isn’t to say that abstract scholarship of the law isn’t valuable, and profitable even, to some – but those students are highly outnumbered by the students who would like to learn how to be actual lawyers as well. The system as it stands puts a premium on abstracted, “honorific” knowledge, and as Veblen says, and molds the mind of the scholar so that his thinking “results in no industrial and social gain.” In general, people learn something best when they care about it. Very few people really care about Benjamin Cardozo’s theory of foreseeability in Palsgraf, or Learned Hand’s Carrol Towing formula – but we spend a year learning these things, rather than practicing how to write a persuasive brief, or talk to a client. Proponents of the current system argue that “classic” (classic, meaning archaic, as Veblen uses it) cases, and legal ideas are necessary as a foundation, upon which individual lawyers can build specialties. I disagree. I don’t think there is any reason that anyone would ever need to know the Learned Hand formula to be an immigration lawyer, or a corporate lawyer, or a bankruptcy lawyer. The only thing this classical knowledge gives students is enculturation into the legal world (I mean, everyone who’s anyone knows what happened in Hadley v. Baxendale, right?). However, the legal world of law school is shaped by scholars with very little involvement in the “real world” where “law” and the lack thereof really exist. The academic legal world then becomes a wasteful, legal fiction.

Solving the Problem of Acquiring Meaningful Knowledge

Asking professors/priests themselves to fix this problem is like asking elected officials to change voting regulations. Both groups will be reluctant to bite the hand that feeds them – unless, of course, by doing so, they can get better food. In other words, professors have too much at stake in the status quo to be moved to change it. It’s a system that works very well for them and for the 5% of the students that will grow up to become professors and repeat the cycle. It’s the other 95% of students that will need to make the change. The change that’s needed is not a move forward, but rather a reversion back to simple master/apprentice teaching that was supplanted by the advent of universities and the mass production of “knowledge.” Learning what needs to be done from someone who can do it, seems like a better use of everyone’s year(s) than learning what old, white, men thought about proximate cause in the early 20th century. The closest thing that Columbia has now, are clinics – which are undoubtedly a step in the direction of a more useful type of knowledge. What if law students at Columbia never took a real “class” and instead took only clinics – would they be any worse off as lawyers after three years? Would they be less valuable to Sullivan and Cromwell? Would they be less valuable to society? My guess is that we would actually be much better off and much more valuable. I guarantee – no one will miss Cardozo.

  • I think this is a useful essay, but I think it'd be more useful given a little more balance in its argument. The idea of law school as encrusted with honorific learning is true enough to be difficult for some component of the professoriat to hear, but it doesn't complete the analysis by any means. First, there's the narrow specialization of service providers: an apprenticeship can teach only what the master does, and the master's practice, like all practices, will be far narrower than the spread of knowledge necessary for a new practitioner, who must provide saleable expertise in a changing market, and cannot expect to assume the practice she is learning from. So additional learning is always necessary: the apprentice read Coke on Littleton and Blackstone's Commentaries, or Kent and Story, all of which—one can say without denigrating those lawyers' erudition—might not be the right form of context for a 21st century lawyer.

  • I've never felt in my work as a lawyer that I didn't have enough law in law school, but I saw quickly that I had too little anthropology and too little social psychology. I had way more than most law students I teach, however, which suggests pretty clearly to me that if all you need is to know how to do what you do, you need to be doing something other than the lawyering I've done.

  • As you've an inclination to be a teacher of law students, you might want to consider how closely Edward Gibbon's description of the sources of intellectual conservatism among the law professors of the later Roman Empire, in the 44th chapter of the Decline and Fall, agree with the sources of your discontent with your teachers now. Figuring out how not to do what law professors usually do will involve figuring out how to think differently, and oddly enough, that's not what one gets by thinking the way a practitioner who is not a teacher is likely to think, either.


Webs Webs

r3 - 08 Jan 2010 - 22:42:53 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM