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Thursday, July 03, 2014

A Return to Substance?

In all the discussion of preparing lawyers for practice, one aspect that is missing is whether we should train lawyers to know the law in a particular area. For some core subjects, American law schools do not produce students who know the law in any deep sense. Would we be better aiming for deep knowledge of core subject areas?  Could this be the academy's most genuine contribution to making lawyers "ready for practice" (an amourphous concept at best)?

In Scotland, to take a jurisdiction I am familiar with, students must become intimately familiar with areas of law in the sort of deep way that requires them to read lots and lots of cases and statutes on a topic. For example, a student concentrating in criminal law could spend, not only the equivalent of a semester studying the introductory course, but a full year studying nothing but criminal law doctrine.

That's not the American approach. In many American law schools, students will graduate knowing (much) more about criminal procedure than the substantive law of crimes. That's because most schools offer only the first year criminal law course as the substantive law of crimes (and which is some schools is combined with criminal procedure). Most first-year casebooks concentrate on only three substantive crimes: homicide, rape, and theft. Even these are presented rather brusquely. Anecdotal evidence suggests that a chunk of professors avoid teaching rape (a big mistake, in my opinion). The law of theft (for reasons of uniformity or to anticipate the bar exam) reflects the practice of 19th century England. The rest of the standard American criminal law casebook focuses on defenses and inchoate crimes. This might be philosophically interesting stuff. But pressures of coverage or "practicality" mitigate against philosophical depth. So current American practice often requires students to become familiar with cases which are neither representative of current law nor of much precedential value. That's surely a waste of everyone's time.

This is not to pick on criminal law. I'm sure the same could be said of most first-year courses, and some upper-division ones as well. And there are certainly teachers who modify the casebook to make it fit the real world, or their state's criminal law.But all this talk of "practice ready" focuses on filing papers in court. It rarely focuses on learning some actual, relevant law. In fact, the practice ready movement (whatever practice ready actually means) appears to be a movement away from legal knowledge defined as knowledge of the law, and towards an ever more shallow, bar-level knowledge of law, along with clerical competence. While filing papers is important, it is not rocket science. Reading cases, thinking hard about the reasoning behind them, and becoming an expert in thinking through issues is (supposed to be) rocket science. It's how we justify the fees we charge our clients.

The standard rebuttal is that we train lawyers how to find the law. But that means we do not give them more than a bare-bones outline of how to think about the law. Upon finding the law, the neophyte must attempt to learn the doctrine in all its intricacies, unmoored from any framing of the issues. They could turn to a senior lawyer for advice. However, the senior attorney may not have the time to provide a deep education into the relevant substantive law. Worse, the senior lawyer may not even know the relevant law, if the law has changed significantly over time (which it does in many fields) or the senior attorney lacks experience in that area of law. The young lawyer may have been hired specifically to provide knowledge of current law or difficult-to-discern doctrine. Without deep legal knowledge, the novice is of limited use to the partner and the client.

Another worry is that providing immersion in a particular topic may also narrow the student's legal knowledge while deepening it. The Scottish way allows for four years of study: the student can engage in a year of criminal law and still have room for three (or more) "deep" subjects during her final year. But Scots Law is an undergraduate degree. Few people are arguing that American law schools adopt four year law degrees. I certainly am not. But there should be space in the curriculum to emphasize those aspects of the practice of law that do not focus on process, but address important issues of substantive law. Encouraging students to read lots of cases so as to understand doctrine seems to be an obvious way to go.

Posted by Eric Miller on July 3, 2014 at 12:54 PM | Permalink


Here's my view, fwiw. There are lots of scholars who investigate and write about what actual lawyers do all day. Based upon that research and my own experience as a lawyer for lawyers, it’s my sense that very few practicing lawyers spend much time analyzing appellate opinions. Some do. Most seldom do. Quite a large percentage nearly never do. And that applies even to litigation attorneys, the huge majority of whom are county-based practitioners in a particular field. In light of that, it’s revealing that Professor Miller more than once used the word, “luxury."

Posted by: John Steele | Jul 3, 2014 7:26:52 PM

Eric, I think I have a different sense of legal practice than you do. Jack, I think it depends on the case. It depends on whether the issue to be brief is one that happens to be based heavily on Supreme Court caselaw (especially recent cases) or the precedents built up over time in a specific state or circuit. I wasn't thinking of sentencing law as being elements, as I gathered Eric wasn't thinking of sentencing law either.

Posted by: Orin Kerr | Jul 3, 2014 4:42:31 PM

It would be absolutely huge if law schools could prepare students to pass the bar exam. They can do more than that, of course, but if schools could make it so that students were qualified to take and pass the bar exam without the need to pay for a barbri course, the system would very much improve over the current state of affairs.

Posted by: Jojo | Jul 3, 2014 4:23:30 PM

I'm with Eric on this. Orin, I'm interested in what you mean when you say "it's common for law schools to teach the cases in depth." Are you suggesting that in some law school Crim Pro classes you might be exposed to enough cases that you could come close to drafting or opposing a motion based on course material alone? My sense is that in most classes, it is, necessarily, once over lightly, and there remain several additional layers of specifics, exceptions and applications found only through close reading of a run of lower court cases--or perhaps by consulting a fine treatise.

Also, if you count sentencing provisions as being subject to elemental analysis (I do) I think it is extremely common for mine-run cases to involve questions about the content and meaning of the elements. Even when considering the elements of the offense per se, I think creative and effective defense attorneys get a lot of mileage out of finding and pressing grey areas. Maybe my perspective is skewed by being in the 9th Circuit.


Posted by: Jack Chin | Jul 3, 2014 4:00:43 PM

Thanks again, Orin. I think it matters for lawyers who have the time to think about the law and the luxury of arguing it to judges who might respond to such arguments: so it matters (at least) for appellate lawyers. Among **criminal** trial lawyers, I am suggesting that it might matter more for those who have the luxury of thinking and advising clients, so higher-end or not-overwhelmed criminal lawyers. And while my post took criminal law as the example (because it's the one I sometimes teach), it's meant to apply generally. But I still believe that knowing the law can shape the arguments you make (as Donald Rumsfield might argue, we should worry about the unknown unknowns) and throwing someone with a piecemeal knowledge of the law into practice and encouraging them to maintain their knowledge in a peace meal fashion seems unwise to me.

As for European legal dogmatists, I can only say in response to C.E. Petit that I don't think that doctrine equals dogma. On the contrary, I think that to persuasively depart from what is done, we need to look at the doctrine to address its weak points and think of alternatives. The problem has seemed to me that too often we teach or write dogma without asking what the doctrine really is: we don't really read and think about the dominant case, or about the companion cases, but only the way the cases are glossed by commentators and treatise writers, and so miss important arguments that could be useful in thinking about the law and the people the law seeks to regulate, empower, or license. So I am against dogmatists of all nationalities and in favor of critical thinking over received authority.

Posted by: Eric Miller | Jul 3, 2014 3:05:42 PM

Eric, thanks for the response. Let me push you on point 2. If you're a practicing lawyer, what difference does it make whether you decide to think of "the law of rape as but one aspect of the law of crimes against the person, and indeed as a subset of laws governing sexual crimes"? That might be interesting to an academic, but how is that going to get your client acquitted or get you a better plea offer?

Perhaps your answer (suggested at the end) is that it isn't currently relevant to a practicing lawyer, but that the world of practice should be changed so that it becomes relevant. But if that's the answer, I'm not sure how that is squared with the post, which I took to be arguing that legal education should change to better match the needs of practice.


Posted by: Orin Kerr | Jul 3, 2014 2:54:03 PM

Thanks Orin. 1) I think it certainly makes a difference that some countries can focus in depth on doctrine because the law of crime is limited to a single jurisdiction. That certainly makes things difficult for some US law schools. But two things might mean that it's not such a big deal: first, the law of crimes is relatively similar for some of the major crimes across jurisdictions. The central distinction is between those jurisdictions that are strongly influenced by the MPC and those that are not (most are influenced at least a little bit). And second, not every school draws from a national pool, and for those schools that don't, focusing on the doctrine of the jurisdiction becomes a better idea, and one that may give them a niche advantage. My former colleague Chad Flanders wrote about this in an article I hyperlinked in the blog post.

2) While it's relatively easy to look up the elements of a crime, knowing the elements and knowing the doctrine are two different things. Does it make a difference to think of the law of crime as organized into crimes against the person and crimes against property (as many states organize their statutes), or to think of the law of rape as but one aspect of the law of crimes against the person, and indeed as a subset of laws governing sexual crimes? I happen to think it does (in part because that was the way I was taught it). Learning the elements of that crime in isolation from the elements of the other crimes precludes us from making connections across the crimes to generate some general insights or to find (in cases that are difficult to winkle out if you don't know the right search terms, for example) some nuanced arguments to make to the court.

Now, a different argument is that no-one makes this sort of argument when presenting a case at the trial level, and certainly not at the state trial level. I think that's correct (it may be an indictment of the county and municipal courts, or an important distinction between felony and misdemeanor courts, as my colleague Sasha Natapoff argues). But then we get into a very important but separate debate about the role of counsel at trial. I think the argument for in-depth knowledge of doctrine remains important for appellate lawyers. It **ought**, in a healthy legal system, to be important for trial lawyers. In part, that is because even trial lawyers have a life outside the courtroom, and that life ought to include advising clients and discussing the law and its development. I realize that such is not the case for most criminal trial lawyers, particularly in the lowest courts, given case staffing requirements and dwindling budgets. But that is a fault of the system, and one that education may even help to remedy. And even if the doctrine does not get used every day, in-depth knowledge remains an important bedrock that can inform the practice by creating informed lawyers able to think about the doctrine, rather than element-reciters who have a bar-level knowledge of the subject they are supposed to be experts on practicing.

Posted by: Eric Miller | Jul 3, 2014 2:29:39 PM

I would offer an additional, high-level-of-abstraction caution: We need to be very careful in determining what "deep knowledge of core areas" actually is... because the identity of who makes that determination can result in serious and self-defeating bias.

Perhaps a "war story" from the 1990s in a particular, and distressingly common, area of law will help. Once upon a time, Congress passed a statute to restrict certain collection practices that were believed to be abusive when directed at consumers. Many collection actions and practices, however, were engaged in not by collection agencies... but by lawyers. If you had asked the collection bar — or, indeed, just reviewed law journal articles — you would have discovered that lawyers don't need to follow the FDCPA rules because lawyers are not subject to regulation under the FDCPA because the law is a separately regulated profession (with high ethical standards yadayadayada). And then along came Jenkins v. Heintz (which I worked on the plaintiff's side on remand), which was not founded on an awful lot of precedent, and indeed went against the vast weight (measured, at least, by dead trees) of precedent.

Now apply this set of circumstances to, say, online defamation. Or, indeed, defamation under any circumstances: What constitutes libel per quod is a moving target at best, regardless of jurisdiction!

The point I'm making is that we have to be very careful when teaching "the law" to not overemphasize the "this is the way things have always been done, so it must therefore be correct" weltanschauung. Indeed, when I deal with European-trained colleagues (both across and on the same side of the v.) on the relationship among contract, copyright, and changing media systems, that viewpoint is often a critical impediment to communication... and not just concerning the common law, either.

Posted by: C.E. Petit | Jul 3, 2014 2:28:18 PM

Interesting post, Eric. Two thoughts:

1) How much of a barrier is it that important areas of law are state law? Where law is federal law, it's common for law schools to teach the cases in depth -- civ pro, con law, crim pro, fed courts, etc. But where law is state law, schools run into problems because many don't have students going to practice in a particular jurisdiction.

2) It's worth noting that some areas of doctrine just don't have a big role in legal practice. For example, at least in the U.S., you can be a prosecutor or a defense attorney for a long time without ever focusing on the elements of crimes. You need to know the evidence rules, and you need to know crim pro. But with most crimes, the elements are pretty straightforward and few cases are at the margins. So extended study of the elements of crimes might be interesting, but I'm not sure it would be particularly useful in practice.

Posted by: Orin Kerr | Jul 3, 2014 2:10:55 PM

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