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Saturday, August 10, 2013

Training, education, and the ABA Working Paper

Here is the ABA Task Force's Working Paper; here is a response from former Cincinnati Dean Joseph Tomain (H/T on the latter: Brian Leiter). Tomain's response is excellent; it captures and beautifully expresses a lot of the inchoate thoughts I had both after my initial read of the report and have had throughout much of this debate. I want to flag and think about a couple of points.

First, Tomain notes that the report repeatedly speaks of law schools "training" lawyers rather than "educating" them (although it also speaks about "legal education"). That seems a meaningful, deliberate word choice that elides a critical distinction that I have not seen discussed but that goes to the heart of much of this conversation. He explains the difference as follows:

I can train a reasonably intelligent eighth-grader to draft a non-compete clause in 10 or 15 minutes.  I cannot, however, educate them about market definition, information asymmetries, or public policies regarding employment in different sectors of the economy.  One might quickly ask: Why would someone who knows how to draft such a clause need to know about economics and market dynamics? The answer is as simple as it is obvious. They need to know the context so that they can critically assess a non-compete clause or draft one in another situation for another client.

A good lawyer needs both education and training. The question is who should provide what and in what order. My late father-in-law spent his career in academic medicine and regularly spoke of doctors who had "trained with" him. In all cases, he was talking about residents or, more likely, post-residency fellows in oncology; he was not talking about med students, people working through the four years of basic medical school. Training, in other words, happened after school--and after education. Which makes sense: One only can be trained to do anything if one first has a basic education as to what that thing is, how it works, and why. And even if some training can and should happen in school (and Tomain notes that clinical and externship opportunities are constantly expanding to provide an introduction to training) it cannot be at the expense of education.

Second, much has been made of the differences between legal and medical education and the purported goal of importing the med-school model into legal education. Tomain shows why that may not work, given the cost and sprawl of residency programs (i.e., training). But let's compare a different professional discipline--social work (thanks to conversations with my wife, who has been in social work education for a decade). Although requirements vary by state, in general, to be a licensed clinical social worker requires: 1) an MSW, a two-year program that includes two semesters of externships, usually following a full year in the classroom, with those externships subject to very specific, enumerated requirements and educational goals; 2) a licensure exam; and 3) two years of post-graduate supervision by a licensed social worker. In other words, there is no expectation that someone will be ready to practice social work on her own the minute she steps out of school, even where, as in social work, experiential learning is a fundamental and required part of the educational process. No one expects "practice-ready social workers." Even if some experiential training becomes a more core part of legal educational--as Tomain, and many other people in legal education, support--law schools are still not going to produce graduates who, on day one, are going to be ready to practice unsupervised and unguided. Because no professional school does.

Third, we also can use social work for comparison on another aspect of the Working Paper--discussion of non-J.D. education and the training/education of non-lawyers to provide certain basic legal services. Social work has both graduate and undergraduate studies; students can earn a bachelor's degree. And at least in some states (Florida is one), a professional only can identify herself as a social worker only if she has a social work degree (BSW or MSW). But these layers of professionals often creates confusion, especially when the media gets hold of a story about a child being hurt, missing, or killed in the child-welfare system. Reports often talk about failures of "social workers," although often the people involved were not licensed, did not have social work degrees, and not as fully trained or educated. I wonder if we will see similar things happen if non-lawyer legal services catches on more broadly.

Posted by Howard Wasserman on August 10, 2013 at 04:21 PM in Howard Wasserman, Teaching Law | Permalink

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Comments

These kind of issues - whether flippantly expressed or not - go back to the heart of legal education. Because a law degree is needed to practice, law students do generally envisage they will get some training as lawyers (as well as some education). Whether they appreciate it or not, students need some education (without the training). 'Thinking like a lawyer' is part of both education and training. Studying the politics or sociology of law is more obviously education. Preparation of contracts, moot courts, and client interviewing are more properly training.

Lawyers don't need three years of post-graduate education though. More training in the third year seems a great idea.

Posted by: Thomas NZ | Aug 13, 2013 10:01:27 PM

I can just imagine the negotiation over format.

"What do you mean it's not going to simulate a Supreme Court case on a Constitutional issue? What other legal work is there? Okay I guess we can slum it and simulate a Federal Court of Appeals case, but only if it is set in the 2nd, 7th, 9th or DC circuits."

Posted by: brad | Aug 13, 2013 6:51:25 PM

Also, here is an example of how the capstone debate might go:

http://www.youtube.com/watch?v=_yYDzLUH1NE

Posted by: andy | Aug 13, 2013 3:22:25 AM

Orin,

I like your proposal, but your suggested competitive event seems too narrow. I suggest that the two groups engage in a "renaissance man" contest, capped off by a debate, as illustrated in Old School, quite possibly the greatest movie ever made.

Posted by: andy | Aug 13, 2013 3:18:24 AM

Observer writes: "The flippant attitude of the academy is infuriating. You assume your competence to practice in an adversarial world in which you don't live."

I think it would be cool if there were a moot court, mock trial, or other similar practice competition between the scam bloggers and likeminded critics (on one hand) and the lawprofs who defend the status quo (on the other). If the scam bloggers and critics win, the law profs who defend the status quo should stop making claims suggesting that they can practice law at a high level. If the lawprofs who defend the status quo win, the scam bloggers and critics should stop suggesting the opposite. It would never happen, of course, but it would be interesting to watch....

Posted by: Orin Kerr | Aug 13, 2013 12:56:34 AM

In which we see a defense of the think system in action.

Posted by: Passing Through | Aug 12, 2013 4:00:43 PM

Why do law faculty fight criticism without introspection? Really, for a bunch of individuals whose claim to utility is teaching rigorous thinking -- education rather than training - the academy seems hellbent on avoiding criticism. That's not to say that law school is worthless or a complete scam. It is fraught with problems, however, and it overproduces graduates almost all of whom are under-competent to practice.

First, ask yourselves why are so very many graduates of law schools critical of law schools? You do not see the same intensity of venom or unanimity of criticism among the practicing graduates of other professional schools. Why has law produced so many unhappy dissatisfied customers? The obvious answer, is that the critics' concerns have at least some legitimacy.

Second, if it is a given that law school poorly trains legal practitioners, then what is law school's purpose? Is it educating lawyers. Do law schools even do that well? Is there a more efficient way to do it? Should there be a "training" component to legal education?

Third, law faculty overestimate their skill-set when it comes to training, both in terms of execution of the practice of law and their ability to teach others to similarly practice. "I can train a reasonably intelligent eighth-grader to draft a non-compete clause in 10 or 15 minutes."

Really, Dean Tomain? You can train a 12 year old to draft an enforceable non-compete in 10 or 15 minutes? Do you even know what would make a non-compete enforceable? Not to beat up on the man, but he graduated from law school in 1974, and spent 2 years practicing as a "general litigation associate" before joining academia. I find it hard to accept that someone with such a background could train a 12 year old to draft an enforceable noncompete in a year, let alone 10 minutes.

The flippant attitude of the academy is infuriating. You assume your competence to practice in an adversarial world in which you don't live. By the same token, I promise that I can teach your naval gazer that the education you delivered was incomplete in 10 of 15 minutes -- and it will happen one small lesson at a time over the course of 10 years! That is how wisdom is acquired - from the school of hard knocks. You cannot educate a lawyer in 3 years. Perhaps you could hope to train him or her in such time to do certain tasks and recognize traps. That would be monumentally better than the current pedagogy which does neither well.

Posted by: Observer | Aug 12, 2013 1:28:00 PM

"In all cases, he was talking about residents or, more likely, post-residency fellows in oncology; he was not talking about med students, people working through the four years of basic medical school. Training, in other words, happened after school--and after education. Which makes sense: One only can be trained to do anything if one first has a basic education as to what that thing is, how it works, and why."

Yes. But there's also basically a one-to-one correlation of medical students and residencies in the country. Students know that after med school comes a residency. When law schools are over-producing by a 2:1 margin the number of law jobs out there, the training function cannot exist for large numbers of graduates.

Posted by: anon | Aug 12, 2013 12:30:09 PM

Tomain makes at least a few assumptions which I and most of the scam/reformist crowd would argue with.

1. "One assumes that the students (of the T14) are hired because they are intelligent, well-educated, have the ability to learn quickly and think critically. Yet, don’t non-elite, regional law schools perform a similar function?"

At least one Supreme Court justice is on record stating that he doesn't think much of what his clerks are taught at the three or four law schools which can hope to place a clerk with the Supreme Court, but these schools do attract the very best applicants in any given admissions cycle and "you can't make a sow's ear out of a silk purse." Many sub-elite law schools have faculties of similar or identical educational pedigree to the elites, but the non-Ivy State U Law graduate will never place in legal or non-legal jobs nearly as well as the graduates of Harvard or Yale despite a largely identical educational experience. The reason is simple: the JD is of some importance, but less than the signaling power and networks offered by these few elites. Everybody else enters the workforce having to prove much more for far fewer rewards.

2. "The standard model of legal education has served the country and society, including the market, quite well throughout the 20th century. Law graduate placement exceeded 90% year after year."

Law graduate placement in bar-required jobs peaked in 1988 (http://www.nalp.org/0712research) at 84.5%. In the years since, we see "placement" in the sense of "post-law school employment" remaining near 90%. The problem is to what extent this "placement" depends on having the JD, as well as how many better options the JD creates as compared to just a BA or BS. This is even more true now that JDs cost so much more than they did in real terms since the golden years when almost every JD who wanted to practice law was going to find a job working in the field.

Posted by: Morse Code for J | Aug 10, 2013 11:23:15 PM

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