Skills without substance

I have stayed out of the fray over David Segal's attack on legal education, leaving it to the many others who have done a masterful job of taking the piece apart.

I do want to flag two recent posts. First, Neil Buchanan discusses Segal's criticism of schools for teaching Hadley v. Baxendale (which Segal makes fun of for being old and aboutrather than teaching students how to draft a contract, reminding us that Hadley stands for a signficant principle of contract damages, adopted throughout much of the United States and that a lawyer who does not know this rule will not be able to draft a good contract. Second, Jason Mazzone looks at Segal's criticism that schools teach criminal procedure, with its focus on case studies of common law crimes rather than training students in how to plea bargain. Jason successfully got The Times to run a correction that Segal meant Criminal Law rather than Crim Pro. But even with the correction, Jason rightly calls Segal's criticism "just weird," because "no lawer could conduct plea negotiations without understanding the basis of the charged crime, which, of course, requires knowledge of the substantive law."

Both critiques hit Segal for the same defect in the article: His assumption that future lawyers only need to learn practical skills and technical details and that they do not need to learn substantive law or how to identify, analyze, and work with substantive law. They need to know how to draft a contract, but they don't have to know anything about contract law; they need to know what papers to file to commence a merger, but it is not that important to understand the law that governs the details of the deal. They need to know how to conduct discovery, but it is not that important to understand the rules that control how discovery operates (not to mention that governs the case itself, which dictates how discovery goes). This is a common refrain in the critique of legal education from non-lawyers, from some practicing lawyers, and even from some in the clinical-education community (where some argue that students need not have any background in the applicable substantive law to work in a clinic). But this is more than weird; it is incoherent.

Law school often is criticized for not being more like med school, although the analogy is not entirely apt and med school does not have the pedagogical market cornered. But no one criticizes med schools for teaching the biology and physiology of the heart rather than how to perform heart surgery or for teaching the biology and physiology of female reproduction and childbirth rather than how to deliver a baby. The expectation is that those skills will be taught during residency. It is true that med schools balance clinical and non-clinical education better than do law schools and med students get more formalized clinical training (although med schools can be tagged for shifting the balance too far to the former). No one suggests that med schools should entirely dispense with non clinical teaching, as Segal seems to suggest law schools should with substantive contracts. You can't diagnose and treat a patient with heart disease if you don't understand what the heart and heart disease is and how it operates. So how could anyone seriously suggest that you can (or should) be taught to put together a plea bargain if you don't understand (or know how to identify, analyze, understand, and apply) substantive criminal law?

There are good arguments for increasing clinical/externship experiences in law school. I don't think anyone questions that, although the precise balance is contested. But it is equally mistaken to go to the opposite extreme and insist that law school be entirely clinical or to deny that there is any value in case-based classroom learning.