The Practical Purposes of Law School

Law students are increasingly frustrated with the utility of legal education during a difficult economic market. As Cooley law school graduates realized recently, their lack of foresight over job prospects may not be compensable by law.

But still law students and prospective law student are still trying to figure out what the purpose of law school is supposed to be. Law schools insist that the philosophical underpinnings of law are an essential background for entering practice, arguably one of the several distinguishing characteristics from paralegals or other professionals working in the legal field.

Michael Plaxton discusses this question in a piece this week in The Star where he states,

Today, we are less likely to hear criticisms that law schools are not academic enough, but that academic priorities have squeezed out practical concerns. Lawyers, students, (some) professors and members of the public have all expressed concerns that law schools do not adequately prepare students for the bar, and so fail to protect the public interest. Last year, the Federation of Law Societies released its own report suggesting a list of “core competencies” that law schools must confer upon students prior to graduation. A school that failed to do so could be stripped of its accreditation — a sentence akin to the death penalty. This reinforces the image of the law school as a place for vocational learning, and not sophisticated academic reflection on the law.

There are other implications for practice to be considered. If the high cost of legal services can in part be attributable to the training that articling students and young lawyers spend on files, as some suggest, then the lack of vocational focus is also an access to justice issue.

It’s not like there aren’t other alternatives. Legal history and philosophy can still be explored at the graduate level in law schools, and as Plaxton notes, legal academia functions on a very different level than in other fields. I don’t discount the importance of these in the development of law, especially in litigation and in the public policy considerations that inform statutes. But it doesn’t have to be the main focus of legal education in an era when most firms are also struggling to financially justify employing more law students.

Law schools can and should play a larger role than just vocational training. As I mentioned here earlier, the legal field still lags well behind other professions on most indicators of diversity, and most of these challenges begin before the lawyers arrive at the firms. The legal field is a profession precisely because we directly inform issues of justice and equality in society, which requires the educational institutions themselves to inform these goals.

Access to justice and social justice do inform the agendas of most law schools, and some even attempt to brand themselves as leaders in this area. But law school demographics simply do not reflect the diversity and socio-economic backgrounds of Canadian society, meaning our advocates and judiciary are largely inexperienced in the challenges that members of the public regularly encounter. This can only occur if law school tuition is affordable.

The most common mechanism employed by law schools to lower tuition are scholarships. However, almost all of these in Canada are merit-based, not based on need.

Chris Goodman notes generally in the Washington and Lee Journal of Civil Rights and Social Justice journal that an emphasis on merit based scholarships invariably shifts these resources to more affluent white students from more economically challenged and minority students, who may have other responsibilities and even work part-time during law school. Brian Tamanaha confirms in Failing Law Schools that those in greatest financial need actually end up subsidizing the education and careers of the best well off law students, given the exponentially better job prospects awaiting the latter, irrespective of actual law school performance.

Jerome Organ suggests in the Journal of Legal Education that the main reasons for the shift towards merit-based scholarships are a concern over rankings influenced by GPA/LSAT, and concern over attrition of students to other law schools after the first year. Given that Canada’s 18 common-law law schools are all considered roughly equivalent, we have the unique ability to operate outside of a paranoid concern over a 4-tier system and directly address the concerns of equity and access to the legal system through education.

However, it’s more than just money. Law schools can themselves be an outright hostile environment for some minority students, given that the composition is largely comprised of individuals who have themselves had limited experience and interaction with other cultures or socio-economic groups.

A study recently presented at the 107th Annual Meeting of the American Sociological Association found that social satisfaction of students was largely correlated to binge drinking. This satisfaction was enjoyed most by what the study calls “higher status groups” (i.e., wealthy, male, white, heterosexual, and Greek affiliated undergraduates). Some “lower status group” members (i.e., less wealthy; female; non-white; Lesbian, Gay, Bisexual, Transgender, and Questioning (LGBTQ); and non-Greek affiliated undergraduates) were able to improve their social satisfaction by joining in on the binge drinking. The exception to this was LGBTQ and minority students, who face discrimination and a sense of belonging that diminishes their ability to ameliorate their lowly status.

Why copious amounts of alcohol would even be proposed as a means to ameliorate social differences in law schools when alcoholism is a persistent problem among lawyers is beyond me. I still have law students telling me that their student bodies lack the creativity or imagination – and frankly the leadership and management skills – to think beyond alcohol-themed events to foster an inclusive social environment.

The challenges faced by law schools are therefore even broader than what Plaxton proposes. The financial model, and justification for return on tuition investment in a challenging job market, is just a starting point.

Our law schools continue to fail to recruit the type of minds informed with appropriate experience who will make the important decisions of the future, in law firms, government, and on the bench. Prioritizing the “profession” in the “legal profession” means an explicit recognition that our law schools are intended to have a transformative effect on society. And that’s a goal that can only be achieved if it’s backed by money.

 

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Comments

  1. As a 3L I definitely feel like law school best prepares the “academic types” who want to pursue graduate degrees and become professors. I am somewhat disenchanted with it myself as I feel its real-world applicability is limited.

    As for the bit on fitting in socially, if you aren’t big on drinking it is difficult to connect after class. It really is a requirement unless you are one of those special people who can drink soda while everyone else is having beer. Chances are you won’t be to excited about going out to drink soda with your colleagues several times a week. It is just part of the culture, I think it needs to change but I have no idea how.

    Finally, I agree more need-based scholarships are important but you make it seem like white kids are all cake-eaters. Needs based should target anyone who isn’t wealthy, regardless of race.

  2. I don’t think I am alone in feeling that my third year of law school was largely a waste of time – all the academic background you need to practice can easily fit into the first two years. A far better use of the time IMO would be to make the third year of law school entirely based on practice oriented training and clinical experience.

  3. David Collier-Brown

    A related question might be “are law schools teaching the right underpinnings?”

    For example, a careful and analytic study of the historical development of computers would be a genuine good in my (nerdish) industry, but it would have to rank far below an understanding of the logic that is used in both hardware and software, or the longuistic underpinning odf computer “langauges”.

    Are law schools teaching the right kind of academic underpinnings for courtroom law? For composing advice to businessmen? For legal drafsmanship?

    –dave

  4. – all the academic background you need to practice can easily fit into the first two years.

    Depends how you define “need” and “practice”, doesn’t it? But, I suppose so long as you define it “in the way most profitable for the practitioner regardless of the client’s needs” then you might be right.

    By the way, what about continuing professional education? Most of that is “academic background”. By your definition of what’s needed for academic background, the only CLE the practitioner should ever have to take is what’s required to keep the “academic background” he or she acquired in the first two years current.

  5. David

    The “underpinnings” of the practice of law is the law. If one wants to be the best lawyer one can be, one has to understand those underpinnings. If one wants to be the equivalent of a computer program performing rote tasks – or a player piano for those who never made it into the computer age – one usually doesn’t.

    But, it’s the “oops, that wasn’t a usually” that’s the problem. People being what they are, the “it’s not the usually” happens more often than many realize.

    David

  6. “Depends how you define “need” and “practice”, doesn’t it? But, I suppose so long as you define it “in the way most profitable for the practitioner regardless of the client’s needs” then you might be right.”

    I did not mean to imply there is no need to continue learning the law as you practice, merely that I didn’t get anything out of my 3rd year law courses other than some additional information in various substantive areas of law which I have either never needed to know again, or which was so stale when I did eventually need to know it that I needed to bring myself up to speed in any event. I don’t think any of those courses gave me anything that could not be as easily accomplished in a day or two of research. My point was that where law school tends to be weak (though this is slowly improving) is in teaching students how to practice law, as opposed to “teaching students how to think like a lawyer”, whatever that means.

  7. That depends on what you think “thinking like a lawyer means”.

    If it means only being able to analyze the issues of a problem and express your analysis and conclusions in a clear, internally and externally consistent, manner, then it adds nothing. The generic student with an undergraduate degree ought to have that ability. In theory that was what he or she acquired in earning the undergrad degree, right?

    On the other hand, perhaps you mean learning how to think illogically. After all, it is a truism that every lawyer knows the law is not logical at all. (A famous House of Lords judge said so in a famous case you might have studied. He wouldn’t have lied to us, would he?)

    “I don’t think any of those [3rd year] courses gave me anything that could not be as easily accomplished in a day or two of research.”

    Perhaps that’s because whatever you took then sunk in. If that’s not the reason then let me know when J. Arthur Martin or J.J. Robinette, for example, call on you for advice. (For reasons other than that I’d like to know they got here.)

    Cheers,

  8. “That depends on what you think “thinking like a lawyer means”.

    If it means only being able to analyze the issues of a problem and express your analysis and conclusions in a clear, internally and externally consistent, manner, then it adds nothing. The generic student with an undergraduate degree ought to have that ability. In theory that was what he or she acquired in earning the undergrad degree, right?”

    I think it means being driven to nitpick incessantly ;-)

    “Perhaps that’s because whatever you took then sunk in. If that’s not the reason then let me know when J. Arthur Martin or J.J. Robinette, for example, call on you for advice. (For reasons other than that I’d like to know they got here.)”

    David, I’m not exactly sure what we’re arguing about. Do you disagree that most law students in their final year would be better served by experiences geared towards imparting the nuts and bolts practice of law, rather than taking yet more academic courses? One of my less than fond memories of law school was the entire semester spent going through the PPSA, section by excruciating section. I regurgitated it for the final exam and promptly forgot most of it, until I had to draft a contractual provision dealing with security interests.

    What I could have used instead was a big picture overview of how security interests play a role in commercial transactions generally, and the ‘gotchas’ to avoid, perhaps set within the context of drafting a contract or preparing a litigation file.

  9. “Why copious amounts of alcohol would even be proposed as a means to ameliorate social differences in law schools when alcoholism is a persistent problem among lawyers is beyond me.” I read somewhere that most lawyers are introverts if that’s the case perhaps “copious amounts of alcohol” allows these individuals to be the extroverts that they are pressured to be. And if that’s the case, perhaps for these introverts they find the social events to be as stressful as the other pressures to succeed — IMHO. Who knows may be everyone is feeling alienated.

  10. We’re not arguing. I got a chuckle out of our comment, hence mentioned some icons who might have been able to do that in their fields, at some point.

    Do you disagree that most law students in their final year would be better served by experiences geared towards imparting the nuts and bolts practice of law, rather than taking yet more academic courses?

    I should probably ask you to define what you mean by nuts and bolts but, taking your statment at face value: I don’t agree.

    Can anybody imagine somebody studying medicine and hoping to be a surgeon saying – I don’t want to take any more course about the human body, I want to take courses in how to cut? Where to buy the knives? What side of the OR table to stand on? Where the OR is?

    One of my less than fond memories of law school was the entire semester spent going through the PPSA, section by excruciating section. I regurgitated it for the final exam and promptly forgot most of it, until I had to draft a contractual provision dealing with security interests.

    Drafting terms of a contract should be part of a course on contracts.

    What I could have used instead was a big picture overview of how security interests play a role in commercial transactions generally, and the ‘gotchas’ to avoid, perhaps set within the context of drafting a contract or preparing a litigation file

    .

    The last two contexts are completely different, but you ought to have been given everything except the litigation part.

  11. One more thing JW –

    Once you are in practice

    Who is going to pay for tha 1 to 2 days of research that it’ll take you to answer a problem that might take somebody maybe an hour because they remember the subject

    If you have your own practice, will your turn the client away because you don’t know the area?

    Will you spend the one to two days of time which you devote to paying work learning the subject?

    Are you going to charge the client for your time learning the subject?

    Will you you charge for the time it should have taken you if you knew the subject?

    If you happen to work for a firm, do you expect them to pay you while you learn areas that they expect you to know the basics of? That you’d know if you’d not mostly forgotten? Or if you have, and you’ve joined a firm that does work in that area, that they’d expect you to (re)learn so that you know the basics of the area?

  12. >Drafting terms of a contract should be part of a course on contracts.

    I fully agree. It was not. We read a lot of cases, discussed a lot of common law rules, but the one thing we were absolutely not prepared to do was to review an actual contract and determine how best to amend it to balance the business and legal risks in an equitable fashion.

    >Who is going to pay for tha 1 to 2 days of research that it’ll take >you to answer a problem that might take somebody maybe an hour >because they remember the subject

    An hour? Because you took a course in third year law school? I don’t know where you went to law school but I can tell you the substantive law I learned in any of my third year courses could be summarized in a 2-5 page outline, and certainly did not equip me to analyze a problem of any real complexity. The fact is you ought to write off a lot of time if you are researching something for the first time. This does not always happen, which is why a lot of corporate counsel will no longer put up with having articled clerks or junior associates being billed at full rate on their files – they don’t see why they should pay for educating junior lawyers.

    >If you have your own practice, will your turn the client away >because you don’t know the area?

    That depends. The rules of professional responsibility forbid us from taking on a matter if we don’t feel competent to practice in that area. I would for example never take on a family law matter, as I have never practiced in that area.

    What I am telling you is that I learned more through articling and taking the bar admission course than I ever did in my third year of law school. I think there is a growing feeling that there needs to be more emphasis placed on learning how to practice law in law school. I am fine with the idea of law school as trade school, and in fact don’t even believe it ought to be a graduate degree. Should it really take eight years (if you include articling) to become a lawyer?

  13. Then your law school failed you. I can’t say the same about mine for me – but then maybe I was more fortunate than you in my choice of professors. It’s easy enough to find out where I went to law school and I’ve been “accused” by some judges of being as academic – the term was not used pejoratively – a practitioner as they’ve ever run into. (“I” might even be keeping dust off of a bookshelf in your law library.)

    I am fine with the idea of law school as trade school, and in fact don’t even believe it ought to be a graduate degree

    . All the JD types will be sending lynch mobs out to get you, for that one.

    Should it really take eight years (if you include articling) to become a lawyer?

    . Yup. It takes plumbers 5 or so. It takes engineers 5 or 6. Unless you think that law isn’t really I science but more like a religion. I think you can get a theology degree from a good school in 4 years – less if you take it by correspondence from a degree mill.

    I think it takes 3-5 years AFTER we’re called, on top of our time in law school, to know enough about the area(s) in which we intend to practice to qualify as incompetent – but that’s just my view.

    In any event – get (if you don’t have it) Angela Swan’s text on contracts. If you’re still young enough to be a young lawyer, and live close enough to Toronto to make it practical, go to her nutshell lectures on contract law offered later this year by the Toronto Lawyers Association.

    Cheers