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Saturday, August 05, 2017

What I Teach in "Introduction to the Study of Law," With an Assist from Hugh Trevor-Roper

The academic year begins absurdly early in Alabama, at public schools and universities alike, and I have already begun teaching. The 1L class began its work on Thursday with a short, intensive course called "Introduction to the Study of Law." I believe this is the second year we have taught it for every 1L student, and I have taught it both years. Our dean, Mark Brandon, taught most recently at Vanderbilt, and so it's perhaps unsurprising that Vanderbilt offers such a course and that we use a text written by two Vanderbilt law professors, Tracey George and Suzanna Sherry. The class mostly does what one would expect of such a course. It gives students some basics on what to expect from the law school experience, how to read and brief cases, some of the basic knowledge and vocabulary they will need to know to do their work, tips for success, and so on. The goal is to eliminate unnecessary fear and ignorance prior to the beginning of substantive law school classes. (Although I tell them, half-jokingly, that if there were no fear at all, they would miss out on joining the long law school tradition, and would lack stories to tell each other and their progeny in years to come.) We read a couple of cases, of course, and--also of course--spend some time with the classic "no vehicles in the park" hypothetical. Is the course necessary? I don't know. I enjoy any opportunity to meet and teach 1Ls, so I'm not complaining; and I think they get something out of it. It is certainly not a demanding course. No doubt many schools now do something like this, either for every student or, sometimes and problematically, for a smaller group of entering law students. 

There are a couple of things I do in this class that I thought I would share. One is obvious, if no doubt not always done: I make sure that the students, in the short time they have with me, read at least one or two full cases. The Sherry and George book offers excerpts from the fun recent Supreme Court decision in Yates v. United States, which asked whether fish are a "tangible object" for purposes of a federal criminal law barring the destruction of material to prevent its seizure by the government. Their excerpt is fine but shorter than even the average casebook excerpt. I require the students to read the full version, including the concurring and dissenting opinions, which altogether is 43 pages not counting the syllabus (which I do not reprint in my handout). Students are not required often enough in law school to read full opinions rather than excerpted versions. They thus aren't forced often enough to do the work of figuring out what the opinion means, separating the substance from the filler, and learning how to use separate opinions to make sense of and critique the majority (or plurality, in this case) opinion, and vice versa. Just as I require my Constitutional Law students to read the Constitution itself in depth at least once, even if most of the course goes far afield from it and the text itself is often unimportant, so I want these students to read a full case at least once in law school. (Yes, they do so in their legal writing and research classes--further evidence that LRW is the most important class in law school. And I hope they all do so in the course of writing papers during law school. But more of this is better, and it's rare in substantive courses.) Yates is a statutory case and a Supreme Court case, so it's not fully illustrative of what they usually read in their 1L year, although it's pretty fun and readable. I also have them read a much shorter but still full version of a standard common-law case, and write a brief of that case. Although I don't think my own chosen common-law case qualifies, having students read a case or two is one area in which those professors or law schools that are so minded can bring in some of the underlying bigger issues that are present but not always discussed in law school--race, inequality, etc. (Some of these issues are discussed in my Intro class.) 

There are three other things I talk about: jobs; whether to attend law school at all; and writing. More on that below.

First, I talk extensively about jobs. No doubt this will please the many students, graduates, and professors who worry about this issue and think law schools fail if they're not candid and detailed in talking about difficulties getting jobs, the state of the legal economy, and so on. And it is equally likely that the talk may dispirit some of my new students, who are coming in full of hope and perhaps high expectations engendered by all the usual blandishments and encouragements that they receive when deciding whether and which law school to attend. I consider it a duty, in any event--and especially a duty to do it early, when they can still reconsider their decision to attend law school, without as much expense or disruption as withdrawing later would involve. I do mention those writers who have argued that the legal economy is improving, that law school graduates still enjoy a lifetime earnings benefit, and so on; I also mention those who argue that the legal economy is undergoing fundamental restructuring and that there will be many fewer jobs, or worse jobs, for today's law students and lawyers. But the general discussion is short; much of the talk is about jobs for Alabama students in particular, and advice for their job hunt.

Alabama is a highly ranked law school and, I naturally think, a durn good one. If rankings were all, it would be a ticket to national employment as well as work in Alabama. Our ranking, among other factors (including our relatively low tuition and extensive clinical offerings; many also say they are impressed by the friendliness of everyone they meet when they visit, and the interest in those prospective students, as compared to their visits to other law schools, which seem less friendly and happy or more indifferent to them), draws students from out of state as well as Alabamans. But rankings are not all, especially when combined with two things: the national prejudice elicited by the very mention of the word "Alabama," and the tendency within Alabama to be parochial. So we face a kind of double-bind in employment. Students who come from out of state to Alabama for law school and want to live and work here sometimes find that Alabama law firms worry that they will leave after a couple of years, and that their investment in training them will be lost. They are, in short, suspicious of out-of-staters, and place a heavy burden of proof on these students that they will remain in the state for the long haul. Conversely, despite its ranking, the value of the Alabama law degree does not "travel" out of state to a degree commensurate with our ranking. So those students, whether out-of-staters or Alabamans, who want to work elsewhere (other than a few places in the Southeast like Atlanta or Nashville) find that it's more difficult than they thought to get jobs there. (I will add that when I meet with prospective students the year before they attend law school, I ask where they want to work and what schools they have gotten into. Where appropriate, if they want to work in place X and have an offer from a decent law school in place X, I often advise them to think seriously about going there, even if it's more expensive than Alabama. I offer half-hearted apologies to the hard-working folks in our admissions and recruitment department.) 

I don't want to overstate any of this, especially if any of my colleagues are (still) reading this. Most of our graduates succeed in getting jobs, and I hope most of them get the jobs they want. Moreover, everyone from the dean on down is working hard on this issue, and making progress. As at most schools, however, getting a job isn't automatic, and it's better that our students be warned about our particular conundrum, even if it makes them nervous or unhappy at the beginning of law school. 

I don't have perfect advice. If I were talking to Alabama law firms themselves, I would tell them, I hope gently, that their parochialism is silly. And it is tied, no doubt, to a general parochialism in Alabama, and especially a tendency to rely heavily and foolishly on those who already know each other--from school, from social networks in Birmingham or Mobile, from excrescences such as the "Machine," etc. It is not different in kind from networks of those who know each other from Choate or Stuyvesant or Harvard or other webs of the northeastern professional-managerial class. But it is worse in degree, incestuous, secretive, often has a racial- and class-discriminatory impact, and is one among many reasons that our state too often fails to update itself and too often prefers mediocrity to greatness. That's a broad statement and an accurate one, but not of course a universal one. Those employers think there are many reasons to live in places like Birmingham and Mobile, and they're right; they should have a little more faith. They should also place greater weight on the fact that these students have already chosen to come to school here. Finally, they're missing out on excellent opportunities for the sake of ostensibly sure bets. Some out-of-staters will leave, but others will stay. In any event, some will be worth the investment even if they eventually leave. In the meantime, the web of alumni and connections built thereby will benefit them in the long run, as will the infusion of new blood, energy, and ways of thinking and doing business at those firms and in the state legal community, as opposed to stagnating and incestuous circles of the already-acquainted, and the occasional high-profile scandals and routine low-profile conflicts of interest they engender. I think many lawyers at many big firms in the state know this and are responding, and I think our dean, who is an Alabama alumnus, is an extraordinary ambassador and advocate for our students. But change comes slowly in our state. 

To the students, I say this. For out-of-staters who want to work in Alabama, I tell them to start preparing a plausible (and hopefully mostly sincere) story about why they want to stay and work in Alabama for a long time. (I do not tell them never to leave. The long-term shape of their careers and their decisions is their own business.) And I tell them to start immediately getting to know as many Alabama lawyers as they can, including the usual offer to buy coffee and listen admiringly to the Great Man or Woman talk about his or her practice, with the emphatic assurance that they will not ask for a job. Lawyers like to talk about themselves and, on the whole, like talking to students who profess to want to do exactly what they do. They are more willing to do so if there is no pleading for a job attached. They may remember that student, and they may introduce him or her to other lawyers who will also remember his or her name. It's slow work and there will be more noes than yeses, but it can result in a job in the long term. Similarly, for Alabamans or out-of-staters studying at Alabama but who want to work elsewhere, I encourage them to start trying to meet as many lawyers in the place and area of practice they are interested in as possible. That may include using trips or vacations to those places, and trying in advance to set up as many informal informational interviews as they can manage. They should certainly contact Alabama alumni in those places, and although younger alumni will have less power, they may understand the conundrum better and be more willing to give advice. 

Most important, and perhaps most in tension with what they are told officially, I tell my new students that they should treat the job hunt as an immediate priority, not something that should wait until after midterms, Thanksgiving, or first-semester exams. Yes, they should focus hard on their studies. But it is never too early to start worrying about jobs. I advise them (and upper-year students as well) to act as if they are enrolled each semester in a class called "Job Hunting," and--as with their other classes--to schedule a certain amount of time to it each week rather than only at the end of the semester or other specific times. They should move the ball forward a little each week rather than trust that everything will work out if they apply through the conventional channels at the conventional times and/or rely on the on-campus interview process. They should do so for all six semesters of law school, including the first. I can't promise magic results. (Again I emphasize that most of our graduates succeed in getting jobs.) But I can promise a little less tension, less surprise and sudden disappointment, and more agency.

Second, I talk about the decision to attend law school itself. The modern cliche is that prospective law students should be told that unless they really want to actually practice law, with the expectation of a living but not great wealth or security, they should probably not attend law school. Take comfort: When I asked for a show of hands, the vast majority of the class reported that they had been given this advice before deciding to come to law school. (I offer the same advice to prospective and admitted law students.) We talk about why they decided to come anyway, what their expectations are, and what concerns they have. Some students talk about unhappy lawyers they know, and why they're unhappy.

This talk is less necessary than it was around 2009-12, when students came in with a great gulf between expectation and reality and less information about law school and the legal economy. Most of my students now are pretty informed about these issues, and have made conscious decisions about whether and why to attend. (They may be over-optimistic decisions, to be sure; but they are much more informed and deliberate decisions.) My point is not to scare them away. They're adults, for one thing; and for another, I loved law school and (mostly) my brief practice of law, and many of these students are far more determined, informed, and excited about the nuts-and-bolts practice of law than those of us who attended law school a couple of decades ago, when "I have a BA in English" or "I like debating" was still a frequent explanation for one's decision to attend. But it's better that they talk and think again about these questions now--when, among other things, it's easier to withdraw if they so choose--than later. We talk about these things too when I teach the legal ethics course, but by then they're already second- or third-year law students. 

Finally and more conventionally, I talk a lot about writing. My general advice is that LRW is the most important course in law school, that a vast amount of legal practice in any field involves writing, that the ability to translate and explain clearly to clients and others is a major part of their jobs, and that if they can internalize the form of a good legal memo, they can apply that skill more easily and successfully on law school exams. I continue to think this advice is better and cheaper than trying to learn and game the preferences of each individual professor. This year, I handed out something I came across in my summer reading: the English historian Hugh Trevor-Roper's writing advice for those writing academic theses. Although it's written for a different audience, it's mostly excellent advice for any writer, including any legal writer. A PDF version is available here, but I reprint them below, from this source. It can also be found in this collection of letters from Trevor-Roper, which is a delightful read.

* * *  


1 Thou shalt know thine own argument and cleave fast to it, and shall not digress nor deviate from it without the knowledge and consent of the reader, whom at all times thou shalt lead at a pace which he can follow and by a route which is clear to him as he goeth.

  1. Thou shalt respect the autonomy of the paragraph, as commended by the authority and example of the historian Edward Gibbon; for it is the essential unit in the chain of argument. Therefore thou shalt keep it pure and self-contained, each paragraph having  within it a single central point to which all other observations in it shall be exactly subordinated by the proper use of the particles and inflexions given to us for this purpose.


  1. Thou shalt aim always at clarity of exposition, to which all other literary aims shall be subordinated, remembering the rule “clarté prime, longeur secondaire.”* To this end thou shalt strive that no sentence be syntactically capable of any unintended meaning. To this end also thou shalt not fear to repeat thyself, if clarity require it, nor to state facts which thou thinkest as well known to others as to thyself; for it is better to remind the learned than to leave the unlearned in perplexity.


  1. Thou shalt keep the structure of thy sentences clear, preferring short sentences to long and simple structures to complex, lest the reader lose his way in a labyrinth of subordinate clauses; and in particular, thou shalt not enclose one relative clause in another,  for this both betrays crudity of expression and is a fertile source of ambiguity.


  1. Thou shalt preserve the unities of time and place,**placing thyself, in imagination, in one time and one place, and distinguishing all others to which thou mayest refer by a proper use of tenses and other forms of speech devised for this purpose; for unless we exploit the distinction between past and pluperfect tenses, and between imperfect and future conditional, we cannot attain perfect limpidity of style and argument.


  1. Thou shalt not despise the subjunctive mood, a useful, subtle and graceful mood, blessed by Erasmus and venerated by George Moore, though cursed and anathematized by the Holy Inquisition, politicians and some of the media, and others who prefer to diminish language.***


  1. Thou shalt always proceed in an orderly fashion, according to the rules of right reason: as, from the general to the particular when a generality is to be illustrated, but from the particular to the general when a generality is to be proved.


  1. Thou shalt see what thou writest, and therefore shall not mix thy metaphors. For a mixed metaphor is proof that the image therein contained has not been seen worth the inner eye, and therefore such a metaphor is not a true metaphor, created out of the active eye of imagination, but from stale jargon idly drawn up from the stagnant sump of commonplace.


  1. Thou shalt also hear what thou writest, with thine inner ear, so that no outer ear may be offended by jarring syllables or unmelodious rhythm; remembering herein with piety, though not striving to imitate, the rotundities of Sir Thomas Browne, and the clausulae of Cicero.


  1. Thou shalt carefully expunge from thy writing all consciously written purple passages, lest they rise up to shame thee in thine old age.


* Some versions ascribe this to "the prophet Black."

** Another version adds "as commended by the High Priest Nicholas Boileau, (1636-1711)"

*** Another version has it ‘the Holy Inquisition, Pravda, and the late Lord Beaverbrook.’







Posted by Paul Horwitz on August 5, 2017 at 11:35 AM in Paul Horwitz | Permalink



You should take a look at my books Think Like A Lawyer: Legal Reasoning for Law Students and Business Professionals (ABA Pub. 2013) and Legal Exercises: A Practical Guide to Clear and Persuasive Writing for Lawyers (ABA Pub. 2015). The first book breaks legal analysis into the five types of legal reasoning: deductive (rule-based) reasoning, analogical reasoning, synthesis, distinguishing cases and arguments, and policy-based reasoning. It then shows students how to use these in problem-solving. The second book contains exercises, which teach students in detail how to do the things in your guidelines.

Posted by: Scott Fruehwald | Aug 5, 2017 1:03:53 PM

And Trevor-Roper might usefully have added, "Thou shalt ever eschew conscious archaisms". Oh, hang on...

Posted by: Frank Cranmer | Aug 5, 2017 1:39:29 PM

"Just as I require my Constitutional Law students to read the Constitution itself in depth at least once, even if most of the course goes far afield from it and the text itself is often uunimportant...."

This sentence really does make me weep.

(Oh, and interesting post--I likely would have found such a course useful ten years ago.)

Posted by: Leland Unruh | Aug 5, 2017 2:55:00 PM

Justice Roberts said that the ACA was not a model of clarity. Do you think that's because representatives and senators don't make the high salaries that college professors do so they don't have the educational resources to learn to write?

Posted by: ObamaCares for you | Aug 6, 2017 8:15:12 AM

I don't agree that college professors know how to write. It varies. And no, I don't think it's about salaries; anyway, the relevant salaries would be those of staffers and drafters. Legislative drafting certainly ought to be clear, but I wouldn't compare individually prepared legal explanatory or persuasive writing with the nature and function of legislative drafting.

Posted by: Paul Horwitz | Aug 6, 2017 9:18:45 AM

- and lobbyists. I wrote quite a few pieces of introduced legislation and final provisions of law. Only well-written ones, of course.

Posted by: nana | Aug 8, 2017 10:43:22 PM

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