
What They Don’t Teach Law Students: Lawyering - DanielBMarkham
http://www.nytimes.com/2011/11/20/business/after-law-school-associates-learn-to-be-lawyers.html?_r=2&ref=business&pagewanted=all
======
grellas
While the article makes good points, I disagree with its fundamental premise
that the case system is a bad way to prepare students for the practice of law.

The article offers what is really an academic critique of law school
education. In effect, it says, "wouldn't it be so much better if we could just
dispense with all that abstract case-law analysis and get on with teaching
prospective lawyers how to draft contracts, how to try cases, how to handle
client interviews, how to give strategic advice for doing acquisitions, how to
negotiate personal injury settlements or divorce arrangements, how to
represent clients before federal regulatory agencies, how to handle equity and
debt funding for business ventures, and all the other things lawyers do." And
it answers that question by saying, in effect, let's have experienced
practitioners teach students in lieu of those who have been professors all
their careers and who emphasize abstract academic writing as a primary means
to career development, let's dispense with the classic core curriculum that
teaches old cases like Hadley v. Baxendale as part of a student's foundational
training and put in its place a lot of clinics where someone can guide
students in how to negotiate, document, and close deals and in how to try
cases, etc., and let's generally adopt an approach to legal education that
allows students to be "client ready" by the time they first set foot in a law
office on graduation. How is this to be achieved in a practical sense? The
article does not say. It posits the problem and suggests that there are
theoretical alternatives to the current system without offering answers.

To learn to practice law well is a huge undertaking. Here is crude guide:

1\. Learn issue-spotting. This is analogous to a doctor learning how to
diagnose maladies. If you never see what the legal issues are in a given
situation, you will have no clue about what is or isn’t important in a deal or
in a dispute. A do-it-yourselfer in law most often falls short here: he will
fill in the form as instructed but will fail to see the traps and pitfalls
along the way or will fail to spot strategic opportunities for doing something
better just because he is flying blind. A law student will do better in having
been trained to spot the issues in ways that academic knowledge affords. A
seasoned practitioner will do all that and much more in being able to guide
clients based on having been through real-world experiences involving those
issues many times before. It is basically a combination of brains,
foundational knowledge, and experience. Ultimately, you need all three if you
are to practice law well.

2\. Learn to communicate well, particularly in writing. Law is often about
words, their meaning, and their impact. As a lawyer, you often need to
persuade, or to reassure, or to cajole, or to intimidate, or to do whatever
the occasion calls for in serving the legitimate needs of clients. If you
can’t speak well, and if you can’t write well, you will be an inferior lawyer.
Conversely, to be a skilled lawyer for many purposes, you need to master the
art of both oral and written advocacy (I elaborate on this here:
<http://grellas.com/articles.html>).

3\. Learn to think strategically. Law can involve many complex areas. The
student will have a grasp of the theoretical complexity. The inexperienced
practitioner will have some sense of how that complexity works in practice.
But only a partner-level lawyer will have a consistent ability to take all
that complexity and be able to handle it strategically - that is, be able to
see the big picture, to understand how all the component parts fit in, to
identify what matters most for a given situation, and to know how to sort
through it all intelligently and efficiently to help achieve a client’s goals.

A new grad in law will be at a serious disadvantage if he lacks a solid grasp
of critical _legal principles_ that are taught precisely by the case system.
You won't be a great practitioner if that is all you have but you will likely
be a poor one if you lack it. You will also be better for having done moot
court or law review (or both) because these will help you master the art of
communicating. But, even if a new grad comes in ideally equipped in all these
ways, there is no bypassing the apprenticeship part of law, the learning by
doing. In my experience, it takes about seven years for a new grad to grow
from green lawyer into a highly efficient and strategic lawyer. That is what
it means when a lawyer becomes a partner.

Can the apprenticeship part effectively be merged in with the academic part
during law school? In limited ways, yes. But it can't displace the academic
part without serious loss to the student. The current system of legal
education is full of problems and flaws but the solution does not lie is
dispensing with or severely minimizing the case system of learning legal
principles. In the end, you can fault it all you like but I still say, "three
cheers for Hadley v. Baxendale." In the end, this remains a foundational part
of good lawyering.

~~~
geebee
That's a good write-up on the benefits of law school. My biggest problem with
the current structure of JD programs isn't that they're useless, but that
they're mandatory.

For instance, you can make a case that majoring in Computer Science is a
better than majoring in Math if you want to be a programmer, but you can't
legally prohibit math majors from writing code.

I'd like to see alternatives to JD programs. I think that a lot of the core
skills you described are certainly developed in good law schools, but they are
also developed well in lots of different academic paths. For instance, suppose
someone double majored in mathematics and english literature with exceptional
grades, followed it up with a grad degree. Should that person be forced to go
through three years of law school? If this person were allowed to pass the bar
and was able to do so, should we deny him or her the right to enter the
profession? Would this person be ready with a one year course of study (maybe
a master's degree)? Even if it would be "better" for this person to do the
full JD, is it worth the additional time and money (and deterrence)? Are we
better off as a society if this person gives up on law? (People who hold JDs
are probably better off, which of course has a lot to do with how rigorously
the JD is enforced as barrier to entry).

There's a big difference between defending the JD as a good way to prepare for
a career in law and defending the JD as the _only_ way to enter the legal
profession.

------
evoloution
It is easy to teach and learn the practicalities of a profession. But it is
the difficulty to enter, the amount of abstract thinking and study required
plus the prestige that gets you higher salaries in the end. It is like saying,
look I have made it so far so I am pretty able to do anything if you train me
more. If Universities were employee factories then salaries would be lower,
service prices would be lower (most people think this is a good thing) and
requirements from students would be practically non-existent.

Take another example. A 30 year old nurse gets far more practical training
than an M.D. but after she masters the practicalities, it is simply an endless
repetition. MDs on the other hand are trained to solve problems and in just
4-5 years of practical training are able to do that in a higher degree.

Apprenticeship has been established in the service provider's section from the
beginning of time, it is hard to beat with some extra classes in the
University

PS: My first comment on HN, hello to everyone, you have a great community here

~~~
jseliger
"But it is the difficulty to enter, the amount of abstract thinking and study
required plus the prestige that gets you higher salaries in the end."

The problem is that the "difficult to enter" is artificial and exists
primarily as a way of ensuring high salaries of current lawyers through the
law school requirement; Clifford Winston explains as much in _First Thing We
Do, Let's Deregulate All the Lawyers_ , ([http://www.amazon.com/First-Thing-
Lets-Deregulate-Lawyers/dp...](http://www.amazon.com/First-Thing-Lets-
Deregulate-
Lawyers/dp/0815721900?ie=UTF8&tag=thstsst-20&linkCode=as2&camp=1789&creative=390957))
which is worth reading for anyone interested in the issue.

It used to be that one could "read" for the bar and hang out a shingle
announcing that you're a lawyer. This didn't seem to hurt anyone except
existing lawyers. People are reasonably good at figuring out who might be okay
at a job and who won't be; the nominal "protection" they get in the form of
law-school credentialing is not that far from the "protecting" they might get
from Tony Soprano.

P.S. Solid first comment; welcome to HN.

~~~
rayiner
You can still apprentice and then take the bar in California, without
attending law school, and that hasn't seemed to do anything positive for the
price of legal services in that state.

Winston presupposes that increasing supply will decrease costs, but he fails
to understand that it's not the ABA that's limiting supply. The DOJ smacked
them down in the 1990s for trying to limit supply--the accredit law schools as
quickly as people can open them up.

Rather, what limits supply is how many students Harvard, Yale, etc, are
willing to enroll. Big firms hire almost exclusively from the top 15-20
national schools, plus the very top students at the regional schools. The
limitation in supply of those people drives the firms' cost structures. And
people keep bringing their business to these firms because they're afraid of
losing litigation or screwing up a deal and are willing to pay for the
abstract comfort of the credentials.

------
_delirium
There used to be a dual-track system, where you could study law by either
attending a law school, or apprenticing with an existing practicing lawyer for
some set amount of time; and either way you could then take the bar exam to be
licensed. Typically people would go the apprentice route to become trial
lawyers, and the law-school route to become appellate lawyers or specialists.
Seems the apprentice route has either been abolished or fallen into disuse,
though.

This article's proposals for reform don't really seem on the mark, though. As
this post points out, his suggestion for expanding law-school practical
clinics, and staffing them with tenured faculty rather than instructors, is
pretty directly contrary to his complaints about the expense of law school,
since that would only increase it: [http://balkin.blogspot.com/2011/11/david-
segal-on-law-school...](http://balkin.blogspot.com/2011/11/david-segal-on-law-
schools.html)

~~~
a3camero
This is still technically possible in a few places:
<http://en.wikipedia.org/wiki/Reading_law#Modern_practice>

------
reader5000
To me, this article perfectly captures what is wrong with legal education:
students are plunking down $150,000 @ ~8.0% to learn how to support themselves
practicing law, and in exchange they get three years of abstract classroom
lecturing. Add into the equation documented outright fraud in employment
statistics reporting on the part of law schools and you have what is
legitimately a scam going on. Best of all, there's no return policy for JDs.
Not even bankruptcy.

~~~
gtani
[http://www.nytimes.com/2011/01/09/business/09law.html?pagewa...](http://www.nytimes.com/2011/01/09/business/09law.html?pagewanted=all)

This was a good story, recent JD with $250k in student loans, no job, and he
knows he needs to stay calm.

Incidentally this from 2nd page of googling "law school student loans" (the
same google search done by hundreds of thousands of college juniors every
year), buried in a sea of websites telling you how easy it is to make law
school, business school or whatever your dream is, attainable/affordable.

------
rayiner
As a law student I think the article misses a few points.

1) The case method is a great way to teach concepts. Working with
hypotheticals and seeing how rules interact is extremely useful, and something
I greatly missed in my engineering education where I spent 4 years just
watching some TA do derivations on the board.

2) Schools don't teach outdated law as the article seems to imply. Sure you
read some old cases in the process, but some of the basic areas of the law
haven't changed that much! To take the example of Hadley v. Baxendale used in
the article, it was true in 1850 that damages for breach of contract are
limited to those that were foreseeable by the parties, and it's still true
today! When I took contracts, our book started with Hadley, but went on to
describe several cases that arose in the dispute between Texaco and Pennzoil
when they were both trying to acquire Getty.

3) Law school doesn't leave you any more unprepared to practice law as
engineering school leaves you to practice engineering. Indeed, law school does
a much better job teaching you to "think like a practicing lawyer" than
engineering school does to teach you to "think like a practicing engineer."
The problem is that a lot of the courses that teach you lawyering skills are
elective, and people would rather take "law and social change" or something
fluffy like that. At our school we have extensive clinic offerings, and my
friends and I are doing everything from poking around in a Superfund site to
helping defend criminals. And the professors aren't all eggheads. My tax
ethics and business associations professors are partners at local law firms,
my telecom and environmental law professors practiced in the field for years
before coming to teach, my clinic professor was general counsel at a major
corporation, etc.

~~~
chimeracoder
> "1) The case method is a great way to teach concepts. Working with
> hypotheticals and seeing how rules interact is extremely useful, and
> something I greatly missed in my engineering education where I spent 4 years
> just watching some TA do derivations on the board."

Agreed. The case method would arguably address many of the problems raised in
this article. The problem is not the case method itself, but what is being
taught by the case method.

------
powertower
This isn't just law school related. This applies to every type of college and
education system, with few exceptions.

The college system does not teach practicality _by design_.

To do that would remove a great deal of profit...

Instead of raking in 4-5 years worth of tuition, they would only get 1-2
years.

Instead of hiring teachers that can't-do, they would need to find teachers
that can-do.

Instead of keeping people pre-occupied and enrolled with bullshit curriculum
that keeps you going nowhere and seeing-nothing, they would lose students as
soon as those students decided this type of job was not for them (rarely
anyone knows what they want to do at this age).

The college system is sold to us on the premises that 1) you'll be trained for
the job that 2) you will most certainly be getting right after the degree is
awarded. Neither of these things is true.

I've been there. It was not worth it at all. While there are a few exceptions,
people mostly play on their egos with degrees and such. There is nothing quite
as useless as a new college graduate that thinks he has value.

~~~
MatthewPhillips
Colleges have never advertised themselves as employee factories. The value-add
for college should be in giving people the ability to think for themselves; to
figure things out.

~~~
DanBC
Why does that have to cost $150,000?

Why can't "thinking for yourself" and "figuring things out" be combined with
examples from relevant legal systems rather than examples from post-feudal
England?

~~~
_delirium
I haven't attended law school, but I've self-studied a few of the casebooks
and readers they use, and most examples _are_ contemporary. In fact many profs
and book-writers go out of their way to use examples their students will find
relevant/entertaining. Sometimes that even gets them into trouble; in a recent
case, a law prof was suspended for posing a "colorful" hypothetical about
shooting his dean in various combinations of circumstances:
[http://volokh.com/2011/02/16/criminal-law-professor-
suspende...](http://volokh.com/2011/02/16/criminal-law-professor-suspended-
for-classroom-hypotheticals/)

~~~
a3camero
I have never had a law exam question that tested something on outdated law.
I'm a third year Cdn. law student but it's probably quite similar.

The old cases are taught because they're still relevant to some principle. A
1600s case about a music hall burning down sounds ridiculous until you realize
that "buildings burning down" is still a problem that exists today and that's
the origin of the doctrine of frustration.

------
jrockway
Yes. Colleges are not trade schools. If you want fancy letters after your
name, you are going to need to learn all the theoretical stuff about your
field, and people are going to ask you about that stuff in interviews. If you
just want to write a Ruby on Rails app, you can save yourself the $150,000 and
3 years, 364 days, 21 hours by reading "Teach yourself Ruby on Rails in 3
hours".

------
fourply
I've read this same article every quarter for 5+ years now. In another 10 or
15 years, law schools may start to focus more on the importance of clinical
education, but the change will continue to be slow.

The best and most valuable experiences I had in law school, bar none, were
participating my school's clinic and volunteer income tax assistance site. I
graduated in 2008, and still learn something new every day about how to be a
good lawyer. If that doesn't continue for the rest of my career, it's my own
damn fault.

------
wallflower
The most shocking thing about the article was the $575 million that is spent
on law review research! Talk about a different government subsidy!

I know basic science research is important but academic law research?

Exhibit #1 (the second item under "Articles" (NSFW, depending on where you
work))

[http://www.cardozolawreview.com/index.php?option=com_content...](http://www.cardozolawreview.com/index.php?option=com_content&view=article&id=87%3Atable-
of-contents-28-4&Itemid=14)

~~~
rayiner
Well in one sense this research is government subsidized, because it's paid
for through tuition that is paid for through government-backed student loans.
On the other hand, the government recoups that money so the actual subsidy is
much smaller than the $575 million figure.

That being said, I think there is one very salient aspect to the whole law
review system, which is that it engenders participation by a much broader
cross-section of lawyers than is the case in other academic fields. Law
reviews publish students and practitioners in addition to professors. You see
articles not just about abstract theory, but the mechanics of some new tax
provision. Even at big law firms some partners take the time to publish, not
just articles but books. This is far better than say CS academia, where most
articles are math-wankery that everyone ignores.

------
rdp
There are many opportunities for practical learning at law schools. Yes, you
can go through 3 years of school without learning out to draft a contract. You
can also sign up for a clinic or internship or a drafting course.

For better or worse, law school forces students to take responsibility for
their learning. Many professors just aren't good at teaching so students often
end up teaching themselves a subject. Thus, the gigantic market in study aids.
This all hits home when you have to absorb tons and tons of material to take
the bar exam.

------
tytso
I see something very similar happening in many Computer Science papers and the
areas in which some CS academics have chosen to focus their time. It's not as
bad as what goes on in Law School, certainly, but there is definitely a divide
between what is important to industry (which is often much more about
engineering) and academics (who need to publish something which will get them
tenure, which means it has to pass muster with senior academics in the field).

~~~
tikhonj
I think that, for CS, this is actually a good thing: "industry" in general
tends to be more interested in short-term gain and things which are
immediately practical--they are creating the technology of tomorrow.
Academics, on the other hand, are not bound by this; they can look into
creating the technology of the far future.

Another important difference is that CS research _also_ goes on in industry,
resulting in more diversity. There is no fundamental problem underlying the
whole field--for every researcher working on things you find useless for
industry, there are probably several working on things which are useful.

Finally, this may be due to my university being more pragmatic than some, but
most of the research going on that I've heard about is actually immediately
practical. The single largest issue a ton of professors seem to be working on
is parallelism and distributed computing, which is indubitably extremely
important to industry _right now_. Of course, I could also only be seeing this
because most of the professors that teach my classes or that I've talked to
are affiliated with similar labs.

------
yariang
Few thoughts.

"Another problem he encountered: there are few incentives for law professors
to excel at teaching."

As a college student I can attest that this is not just law professors. This
is the case in any research-centric university.

The rest of the article reminds me of the debate surrounding Computer Science
and Software Engineering. Many people feel that CS degrees do not prepare you
to actually code, and that a lot of CS graduates do so without knowing how to
write any good code.

If looked at in that light, is it really a problem? The specifics of how law
is done might change, the deep insights and theoretical knowledge will always
be useful at some level.

To frame it in the computer-science context, which I am more familiar with, if
a schools pends four years teaching practical applications of Java and the
specifics of the Hadoop framework, the graduates will surely have a lot more
practical knowledge right as soon as they begin working. But in ten years if
Java is no longer used and Hadoop was superseded by something else, all that
knowledge is now useless. In contrast, knowledge of Turing Machines and
automata will still be useful, if not for its practical application, for its
cultural value and the ability it has to change your thinking about problems.

I think the best way to deal with the lack of practical knowledge is to
combine it with actual practice. At Northeastern University, a large
percentage of the students do six-month coops where you work full time for
those months. It's a way to deliver the best of both worlds. Deep theoretical
lecturing mixed with actual real-world work. I have yet to find a downside to
it for the average student.

~~~
astral303
Yes, it is really a problem. Unless your career path as a CS graduate is to
research more computer science or somehow spend your career only working on
the theoretical, it really is a problem that you graduate not knowing how to
code.

Learning Hadoop and Java is not the same as "learning software engineering",
just the same way that learning quicksort is not the same as "learning
computer science."

You're conflating learning a specific language or a tool with learning how to
engineer anything more complicated than a one-file program. Software
engineering is about understanding why you should care about object
orientation--and when you shouldn't. It's about learning how to deliver most
value for a given expenditure of time--and how to make sure that value lasts
longer (i.e. maintainable code).

------
ericsuh
"If medical schools took the same approach, they’d be filled with professors
who had never set foot in a hospital."

Amusing, because med schools _are_ filled with professors who have never
practiced. They're called PhDs, and account for a huge majority of faculty at
medical schools. That's why doctors have to do residency and medical
rotations.

------
kingkilr
The article seems to be really pushing that law review articles are obscure
things that no one put another professor of law could understand or care
about, but as a CS student who's taken one course in ethics at a very un-
humanities university, all those titles were perfectly understandable.

~~~
_delirium
His examples aren't even all in law, to make it worse!

For example, he mentions a paper entitled "What Is Wrong With Kamm's and
Scanlon's Arguments Against Taurek" from _The Journal of Ethics & Social
Philosophy_ as an example of ivory-tower lawyering. But this paper is written
by Tyler Doggett, a _philosophy_ professor. He isn't even a borderline
law/philosophy prof: he doesn't have a law degree (he has a philosophy degree
from MIT), and he doesn't teach in a law school (he teaches in UVM's
philosophy department). So it's not clear how his publishing output is
relevant in any way to law school curricula.

Weirdly sloppy researching/writing. Though it does open a small window onto
just how dishonest that type of "quote 'incomprehensible' academic papers to
show how out of touch they are" argument often is: the people making it rarely
have a good-faith interest in understanding the papers they're citing, and
instead quote random things without reading them.

------
linuxhansl
The fundamental issue I have. Why do we need lawyers?

This is not a flame, but a serious question: Would it be possible to phrase
the law and change the procedures in a way that would obviate lawyers?

In jury trial a lawyer's task is more that of show master to convince the
jurors (who are neither trained in law, nor in the matter of the trial) of
their client's position.

The other task is help interpreting the law, because it is not phrased in
terms that the "common person" would understand.

~~~
rayiner
Asking "why do we need lawyers" is like asking "why do we need CPAs?" Or "why
do we need programmers", for that matter. In modern society its just the
product of division labor. Some people specialize in the complex field, then
advise other people. They leverage the economics of the fact that their
knowledge can serve multiple clients who have similar problem, so the clients
don't have to learn the law themselves.

It's not the phrasing that makes the law complex. It's the fact that the law
is a mechanism through which we mediate human interaction, and the
interactions of modern society are phenomenally complicated. E.g. the Sherman
Antitrust Act of 1890, which is still basically "the law" in the area of
antitrust, fits in just a few pages: <http://www.linfo.org/sherman_txt.html>

It's not dense legalese. "Every contract, combination in the form of trust or
otherwise, or conspiracy, in restraint of trade or commerce among the several
States, or with foreign nations, is declared to be illegal." That's the gist
of the Act. Yet, many lawyers make their living specializing in this law. Why?
Because restraint of trade is hard to define precisely (if the Act tried to
define it precisely, it would be dense legalese, like the Tax Code). Courts
navigate antitrust suits largely be looking at what they've done before
(consistency of result is often more important in law than getting the 'right
answer', which may very well not exist). Lawyers help their clients navigate
through that web of precedent.

It used to be the case, a hundred years ago, that law was unnecessarily
complex. You had to plead cases in this highly stylized format, etc. That's
all gone now. Courts will go to great lengths to make sense of a complaint
written in crayon. What's left is a lot of necessary complexity. Look at the
Federal Rules of Civil Procedure:
<http://www.law.cornell.edu/rules/frcp/#chapter_vii>

Again, it's not dense legalese. "A summons must be served with a copy of the
complaint. The plaintiff is responsible for having the summons and complaint
served within the time allowed by Rule 4(m) and must furnish the necessary
copies to the person who makes service." When law students take civil
procedure, the greatest source of complexity actually ends up being complexity
inherent in our federal system: choice of forum, choice of law, etc. Under
what circumstances can a California court exert jurisdiction over an Alabama
resident? When does a federal court have to apply state law? Which state's
law?

------
mostlyListening
So it's not just that CS departments are graduating engineers who can't solves
FizzBuzz, law schools are graduating lawyers who can't file a merger
certificate.

This goes to the heart of what education should be about. Foundations and
theory, or vocational training.

