Read

Another year of classes and exams has come to an end, which puts me in a reflective frame of mind; recently a topic that has been turning over in my mind is curriculum reform, which is a hot button topic on this Blog and at many law schools across this country and North America in general. As I survey the conjecture on the topic there is one thing that I do not see addressed that bothers me and that is the topic of preparatory reading or rather the lack thereof.

As anyone who has a law degree, or is pursuing one, can tell you it requires a lot of reading; we have a precedent based system which means that you have to be familiar with the precedent before you can act on the current situation, or in the law school context you need to read all of those decisions with the precedents your prof wants to you know. Regardless, which form of learning is being followed, practice based, theoretical based, etc., the reading still has to be done, and in my experience it is not happening with a significant portion of students. I will admit off the top that my evidence is anecdotal and observational; however, I have recently taken classes in other faculties and I’ve seen first hand from, the student perspective, what it does to a class and I can also attest that this is not unique to law students but we are talking about law in this forum and it holds to law students as well.

Readings are assigned as preparatory work so a student will show up to class somewhat familiar with a topic and able to engage in discourse on the topic by forming an informed opinion; unfortunately this is not occurring; readings, if they get done at all, are being done in cram sessions after the fact or in annotated notes endeavours at the end of term and this is not the purpose of assigned readings. The purpose is that they be read prior to the topic being covered in class so that some knowledge is brought to the discussion not just opinion (there is a significant difference between an informed opinion and merely “an opinion”). Education is a two-way street, you should not just show up and expect to have knowledge imparted to you with no work on your part, there is an obligation upon the student to prepare properly for the class because the class has been prepared with the expectation that the students will have done this. When a majority of students in a class show up not having done the preparatory work it leads to some of the breakdowns that are being discussed in various forums on curriculum reform but I haven’t seen many of these discuss the lack of preparatory work being done on the students part. I fear that regardless of the outcome of these efforts at curriculum reform this fundamental breakdown will continue and the complaints about law school education will continue as they have unabated for over 100 years. It is a significant point and I would like to see it addressed.

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Comments

  1. I went to a good Ontario school, and I’d read everything plus 100+ off-syllabus cases for each class. The response that I always got from other students was, “You read the casebook? You read EXTRA cases?!”

    There aren’t many intellectuals in law school. Sure, everyone’s bright, but people know they’re 3 years away from working 70-hour weeks, and they won’t be quoting case-law when they’re pushing through insurance settlements. So why bother. Throw in nepotism and good-looking students who coast after OCIs, and where’s the incentive to work to the point of cascading migraines?

  2. I have a recent call and I’m a bit irked by this attack on law students who don’t read every case. In defence of such law students (and I may or may not be one), I would argue that many of those cases are not worth reading. Decisions are long, rambling, and repetitious – in many cases, one can read a quarter of the case and come away with the necessary principles. Moreover, law professors assign readings in such a high number that they either do not expect their students to read or they do expect their students not to sleep.

    I am a reader but I wouldn’t say that I’m a reader of caselaw. I read what I need to, but I don’t read extraneous stuff that won’t help my clients and won’t make me any more of a thoughtful person. I think that if law students want to become good lawyers, they may have to look to reading material outside our jurisprudential cannon.

    I was disappointed that law school wasn’t more academic – that it was about memorizing loads of information and not questioning it. If law professors want their students to read the material, they should consider re-envisioning how to teach law.

  3. Mr. Amis,

    I’ll assume you read the material because you believed that was what was required for you to understand the material to your satisfaction. If that’s so, then why would you care what the other students said?

    You are not entitled to learn the relevant law at the expense of the person you represent. (I’m sure that claim elicited giggles from many readers.) You’ll have to decide, for yourself, where the line is between knowledge you should have before you take on a case, and knowledge you’ll acquire at the client’s expense.

    Most judges will (not surprisingly) expect you to know the relevant law before you go to court, not after they’ve explained it to you (at least the first time you show up unprepared). If your colleagues in school didn’t know that then, they’ll eventually learn it in practice, often to their embarrassment, as in this case: Wilson v. Bobbie, 2006 ABQB 22 at para. 42.

    The judge who wrote the reasons? He’s now on the Alberta Court of Appeal.

    You might be given a second chance to repair your reputation.

    As to “won’t be quoting case law when they’re pushing through insurance settlements”, bear this is mind. Civil litigation is a small part of the legal system. While the existence of insurance may play a part in some settlements, there are many areas where it is irrelevant.

    For what it’s worth, too, you (or they, if you were referring to the views of others) seem to have a mistaken view of what’s involved in whatever you (or they) think “insurance settlements” means. Perhaps your reference was to small-amount personal injury litigation. Many law students are surprised about the amount of law they need to know to survive in practice in that field, even when all they’re doing is articling at a law firm whose work is primarily personal injury. Insurance may fund those settlements, but you won’t get there without knowing some law. You’ll find that many adjusters in that area believe they know as much about the relevant law as you do. Many of them won’t be wrong. In many cases, the only relevance of insurance is that it provides the fund.

    Finally, if constant reading gives a person “cascading migraines”, he or she should consider a different line of work.

  4. I’m sure that others have noticed that Lisa’s complaint, in the first sentence of the last paragraph of her reply

    I was disappointed that law school wasn’t more academic – that it was about memorizing loads of information and not questioning it.

    seems to be that law schools are exactly what Mr. Amis suggested his classmates want(ed) law school to be.

  5. Lisa,

    “I am a reader but I wouldn’t say that I’m a reader of caselaw. I read what I need to, but I don’t read extraneous stuff that won’t help my clients and won’t make me any more of a thoughtful person. I think that if law students want to become good lawyers, they may have to look to reading material outside our jurisprudential cannon.”

    What’s your definition of “extraneous”? The common law works on precedent. That means case law, whether or not there’s statute involved. Unless you plan to rely on the views of others, you have an obligation to read the case law.

    The syllabus cases were listed by a professor who, you should assume, knows the subject matter. The cases are listed because they are relevant in some fashion. You are right that there are many prolix judgments. It’s my experience – and yes, I have been back in law school as a student recently enough – you are given books of cases and materials. The cases are often edited. Perhaps you believe the professor should have edited out more. On the other hand, the professors who prepare that material spend a significant amount of time deciding what to take out and what to leave in. What’s left in is there for a purpose.

    You claim that, in many cases, one can read a quarter of the case(s) in order to get the necessary principles. Maybe you can, now. Maybe you could, then, after reading all of the case(s). But, before that?

    While you might argue that “many of the cases are not worth reading”, what’s your basis for disagreeing with the prof’s assessment? If it’s based on what you now know, you’ve missed the point.

  6. Mark,

    Thanks for this article on reading to be prepared to discuss topics in class. I like the idea that there are still faculties with small enough sections where the exchange of well prepared and reasoned arguments takes place. Discussion of ideas with classmates facilitated by profs was my favourite part of university.

    As someone who helps with the mechanics of preparing online casebooks for sessional law school faculty, I am glad that this is being debated at Slaw.

  7. I’ll trust David’s practical experience, because his law degree is likely of an earlier vintage than mine, but, in terms of the current law school paradigm, I’ll stick with what’s been said: many students want to get an OCI job and coast to the finish line. That does not require that great effort be expended in terms of learning the assigned material to the extent required for in-depth classroom discussion. “Still,” you say, “they can surely take an interest in their classes–read the cases.” Yes, that’s true. It just doesn’t happen all of the time. Especially in terms of areas of the law which are unrelated to one’s planned sphere of practice. (Maybe this was always the case, but, given the job climate, there’s a certain degree of spiritual and mental exhaustion now baked into the process.)

    What students believe might not prove to be true, but they can learn–literally–their lesson at any time. One is hired to practice insurance law; one reads everything relating to insurance law. Anecdotes aren’t helpful, but I could provide many that begin with “Successful Lawyer X, now living in Forest Hill (Toronto), says that he got by on borrowed outlines after 1L.”

    And to David’s point about working to the point of cascading migraines, that wasn’t solely directed at reading. Law students are in competition; that requires that they out-work each other. The stress of the struggle leads to physical and mental illness–sometimes migraines. That’s all that was meant.

  8. David Cheifetz

    Simon,

    My LLB is a few months older than The Rocky Horror Picture Show. The LLM is less than a year old. That 37 year gap gives me some perspective. One degree is from one Toronto-based law school; the other the other. That gives me some perspective on those two schools. That information would have been easy enough for you to discover, given that I use my “real” name online, not an alias. Had you looked up that information, even on the web, you’d have been hard put to avoid stumbling onto other relevant information (even if you hired one of those lazy 1Ls to do it for you).

    As for the rest of what you just wrote, were it possible to send you back in time, you’d find that there is no practical difference between being in law school then and being in law school now other than that you’ve far more options in what to take including practice-focussed courses, the modern facilities are far better and the men often had hair as long as, or longer than, the women – even amongst the professors.

    As for competition amongst students, nothing has changed. “Paper Chase”, after all, is a 1973 movie. There was nothing new, then, about the experience it purported to depict. Beyond that, students in professional faculties compete with each other. That’s life, too.

  9. One addendum.

    As for coasting through school on the notes of others, with or without attending class, there’s the realistic prospect that those people understand law better than most of the rest of us, whether or not they’re otherwise more intelligent than the rest of us; or, even that they are more intelligent than the rest of us. That’s life, too.

    Read a biography of Einstein.

    As for mental and spiritual exhaustion, consider this. As a law student, it’s unlikely that a screw-up will do anything worse than killing your legal career, or that of a colleague.

    Now imagine that you are a medical student.

  10. No, I don’t think that the students whom we’re discussing have any greater understanding of the law than the rest of us. I think that they’ve performed a cost-benefit analysis and realized that once they’ve made their way through the OCI door (or the relative-with-a-practice) door there’s not much use for ten-hour days in the stacks.

    In my experience they don’t necessarily understand the law; however they do understand law school. With $100K loans now common, these students likely exist in greater numbers than in the past.

    I won’t dispute that law school was always competitive–Harvard LS or otherwise. But the job market is poor, and fear and uncertainty don’t always engender intellectual curiosity. So one works for grades. And this does not always require reading the assigned material.

  11. Simon,

    For whatever this is worth, I’ll let you in on two small secrets that you’ve likely got wind of, already.

    The first is that in order to practice successfully, you don’t have to “understand the law”. You need to be able to recognize, in your area of practice, the square (enough) pegs that go into the square (enough) holes and have somebody who will tell you what the answer is when you don’t, so that you’ll have another square peg for the next time that problem arises. It’s the difference between merely knowing your multiplication tables by memory and understanding why 9 X 8 is equivalent to 8 added to itself 9 times; or 9 added to itself 8 times. If you’re one of those who understand, and you’re prepared to make some reasonable compromises, there’ll be a place for you – even in practice if that’s what you want.

    The second? It’s one of law profession’s dirty little secrets that most of us don’t care to admit. It’s that most of what makes up law requires nothing more than what amounts to average intelligence and the willingness to work hard. (As a friend’s child once said: “it’s not rocket surgery”.) Where it is innately difficult – such as in some of the IP areas – it’s the underlying subject matter that’s difficult, not the law. The result is statements such as “the law is straight forward but it’s application to the facts is not”. For the most of the rest of law, the problem, in most cases, is the amount of detail that has to be sorted through – meaning first remembered or identified – for relevance and then put together appropriately. That’s generally the equivalent of trying to fit the pieces of a puzzle together by trial and error. It’s brute force and pattern recognition. Some people are better than others at spotting patterns, that’s all. (Computers are even better where’s there’s adequate data, but (for now) there still has to be a human programmer.)

    For the small area that’s left? You’re making decisions about what ought to be the answer; what’s the better answer among a number of valid conclusions. Those are difficult questions. That’s where understanding the law is important. Understanding the law means more than just knowing the particular area of law that has produced the problem you’re dealing with. It requires a broader understanding of how that area of law meshes (or doesn’t) with the rest of the legal system involved and how that legal system meshes (or doesn’t) with the society of which it is a part.

    If you think those are difficult questions for lawyers, consider how much more difficult they are for the judge who is required to decide the case on the admissible evidence adduced in the hearing, supplemented by whatever the judge can take judicial notice of. If the necessary evidence isn’t before the judge, the judge can’t make the decision that would have been made – ought to have been made – if that evidence had been adduced. If the record is not adequate for that decision to be made, there’s nothing the judge can do. The judge’s decision has to be procedurally valid, too. The GIGO principle – garbage in, garbage out – applies in to all aspects of legal decisions.

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