PrawfsBlawg

Get "PRACTICE READY." Get set. Go!

The ABA’s new standard 303(a)(3) instructs law schools to require graduating students satisfactorily complete “one or more experiential course(s) totaling at least six credit hours.” This standard (along with the subsequent standard 304) goes on to explain that the requirement can be satisfied through a simulation course, a law clinic, or field placement (externship).  This experiential requirement seems aimed at fulfilling the ABA House of Delegates Recommendation 10B from the 2011 Annual Meeting of the ABA that legal education implement curricular programs “intended to develop practice ready lawyers including, but not limited to enhanced capstone and clinical courses that include client meetings and court appearances.”  The California Bar has gone even further, requiring that graduates take 15 “skills” credits in order to be admitted to practice in the state. These enhanced experiential requirements are responsive to calls from all quarters – from the Carnegie Report and the MacCrate Report to Brian Tamanaha’s book and the scam-blogosphere – that law schools revamp their curricula in order to ensure that their graduates are “practice ready.” 

Creating experiential learning opportunities for students is a great idea.  But mandates that law schools produce “practice ready” graduates seem incompletely thought out.  Fundamental questions about “practice ready” graduates remain and will continue to plague the system:

• What does “practice ready” mean in a world where the practice of law involves widely disparate types of work?  
• What sorts of skills, efforts, and methods are required to make a law student “practice ready”?  Is it ready to be a first-day lawyer? Or are schools somehow supposed to produce graduates that can function as a second or third year associate or as an unsupervised solo practitioner on day one in practice?
• Empirically, precisely what sorts and amounts of “practice ready” deficiencies exist now and what must be done to remedy these?
• Epistemically, how can you judge anyone’s “practice readiness” to begin with?
• Theoretically, can (or should) “skills” instruction be separated from learning legal “doctrine”? After all, today’s heralded doctrinal goal of teaching students to “think like a lawyer” was originally promoted as skill training!  For excellent food for thought on this topic, see Linda Edward’s fantastic article, The Trouble with Categories: What Theory Can Teach Us About the Doctrine-Skills Divide , and a review/summary of it here.
• Even if we could teach practice readiness and we could somehow measure and assess it, are law schools really the best places for lawyers to learn practice skills?
• And even if law schools are the best places for “practice readiness” instruction (whatever that means), what are the costs – opportunity costs and out-of-pocket costs – that will be incurred by schools and by students from the re-allocation of resources toward improving graduates’ practice-readiness? 

Basically, although many clamor that law schools need to increase their focus on “practice readiness”, we still don’t know if “practice readiness” instruction is merited, if is it ever achievable (measurable, teachable, possible) in law school, and whether it is worth the cost.

These important, complex, and sobering questions are raised in Robert J. Condlin’s recent paper, “Practice Ready Graduates”: A Millenialist Fantasy”. 

First, as Condlin points out, “practice ready” is not so much a standard as it is a slogan. Condlin characterizes practice readiness as today’s fad – as something without true substance or understanding. Lawyers, after all, must not just be “ready” to practice upon admission to the bar, but must be prepared for “a lifetime of professional growth and service under conditions of challenge and uncertainties.” Are we better off focusing on the long-term rather than the short-term “readiness” of our graduates? Maybe teaching students how to teach themselves in whatever varied area of law they practice now and in the future is more worthwhile than teaching any specialty-specific skill set.

Second, Condlin shines light on the fact that resources spent in teaching skills are re-allocated resources, and that the ABA, as well as individual schools and professors should seriously consider whether such reallocation is justified.  Every hour spent teaching a student how to ask a question in a client interview is an hour that the student does not spend pondering the underlying values related to personal autonomy in our contract law, for example. Condlin admits that “skills instruction” is not in itself impoverishing, but points out that law schools and law students have limited time, money, and resources. There are thus significant opportunity costs from a shift in focus that prioritizes lawyering “motor skills” over thinking skills. 

Third, Condlin asserts that the emphasis on “practice readiness” is unfounded because it is unachievable, at least in the context of law school. Socializiation and disposition take longer than a semester (or two) to develop.  Even a law school clinic class, which is something Condlin says comes the closest to preparing students for the reality of practice, is of limited efficacy, principally because of its short window (13 weeks, usually).  Furthermore, because practice readiness depends on the type of practice, and it is simply impossible to prepare all students for all types of practice, efforts spent could be misapplied in a context where some or all students will not know in law school precisely what sort of law job they’ll eventually have.  Even if you could come up with a list of the required “practice readiness” skills for all possible legal jobs, Condin asserts, that list would be too long to be achievable.

Fourth, Condlin also criticized recent calls for “practice readiness” because being “practice ready” will not actually help graduates get a job.  The loss of legal jobs in 2008 and beyond was not a function of lack of graduates’ practice-readiness. In spite of its implicit promise, in reality, it isn’t lack of skills training that is leaving new graduates unemployed.  Condlin explains: The legal job market shifted in the early part of this century because of forces outside of it. At its core, the legal system, like many other sectors of our society, is now struggling under the twin problems of shrinking demand for labor and growing student debt.  Legal jobs in particular were hit hard with the post 2007 economic downturn, client demands for lower fees, increased competition from non-law-firm service providers, and technology changes. None of these problems were caused by law school graduates’ level of skills preparedness or by law schools’ pre-2008 curricular focus.  Furthermore, Condlin asserts that “[p]lacing students in jobs is principally a function of a school’s academic reputation, not its curriculum.”  He points out the unfortunate reality that the massive overhaul in Washington & Lee’s third year curriculum, to emphasize practical skills over study of doctrine led to a decrease rather than an increase of their graduates’ rate of employment. (See story on this here.) Perhaps the reason a “practice ready” focus doesn’t necessarily translate into better employment is because it doesn’t really work. An ABA study recently found that although 71% of new graduates believe they have “sufficient practice skills,” only 21% of lawyers who work with them believe that this is true.

Condlin worries that when law schools jump on the “practice readiness” bandwagon it will “destroy something that works in a futile attempt to revive something that does not.”

Condlin makes some excellent points, and I always enjoy reading an article that calls popular wisdom into question and makes me pause and reconsider assumptions I may have.  I am ever the optimist however, and I hope that Condlin may be overstating the extent to which the ABA and the law school industry are in fact emphasizing “practice readiness” as the ONLY goal of law schools.  Condlin worries that advocates for practice skills instruction believe that such instruction is “legal education’s primary purpose” and that “[e]verything else is a frolic and detour, and a fatal frolic and detour in hard times such as the present.”  Truly, it would impoverish the law and society as a whole if teaching the “motor skills” associated with practice becomes the goal of law school, rather than one of its several important goals. I, for one, don’t think that is the case (but I may be naïve).

For an example of an opposite view of skills instruction, consider the “audacious goals” that Michael Roster advocates for law schools in his article, “The New Normal” . Roster explains that law firms and their clients demand that recent law graduates be able to immediately add value to a case or a deal. Therefore, he concludes, law schools should overhaul their model to ensure that their graduates can immediately function as a 2^nd year associate or an unsupervised solo practicioner.  It is likely true that firms would like to pass the buck on training. But it doesn’t necessarily follow that the buck should be passed in this way.  Once upon a time, I’m told, law firms actually did mentor and develop young associates – and some firms still do (smaller and mid-sized firms seem more likely to engage in explicit mentoring and development than big-law firms famous for a chew-em-up-and-spit-em-out approach to new grads).  Condlin suggests that the lack of in-firm training results from selfishness or short-sightedness of baby boomer partners. Roster doesn’t explain precisely why firms currently don’t want to allocate resources to training, but treats firms like a law school’s clients, and argues that the customer is always right.

I hope that the majority of those supporting more “practice readiness” do not actually envision tomorrow’s law schools as mere trade schools.  But I believe that many of today’s efforts to build bridges from school to actual law practice are worthwhile. It is valuable to teach legal doctrine in a way that gives it context and meaning and gives law students a glimpse into the world of practice.  I find it natural and effective to integrate the practice context into teaching. In a 1L Contracts class, for example, I do believe that students should read actual contracts, struggle with actual interpretation disputes, and try their hand at drafting clauses or even entire documents. In upper division courses (such as Real Estate Transactions), there are still more opportunities to use glimpses into practice as ways to give context and meaning to legal doctrines. But of course in a mere 39 hours of a law school course, there is insufficient time and no client reality – so these experiences may firm up a students foundation for practice, but that doesn’t necessarily make him or her “practice ready” (again, this all comes back to what this phrase means to begin with!). 

Clearly, the primary goal of law school courses must remain to teach students thinking skills – how to conceptualize a problem, how to parse out legal issues, how to research those issues, how to think analytically about facts and legal applications, and how to incorporate social values and policies into advocacy. In short, teaching students to “think like a lawyer.” That is the primary “skills” instruction that readies graduates for legal practice.  But the entire industry needs to remember that being “ready” to start as a first-year associate or a mentee does not mean that a new lawyer leaves law school ready to practice without supervision and mentorship. In fact, for most graduates, going it on their own without some sort of apprenticing experience would likely end in disaster.

It seems to me that lack of legal mentorship in practice is the real story, and one that the law industry must confront. Because even when law schools do all they can and should to prepare students for a career in the law, new lawyers will only adequately bloom and develop professionally when they have adequate supervision in practice. 

"The Ordinary Religion of the Law School Classroom"

My previous post on Law as a Means to an End showed how, at the outset of the 1970s, ongoing social and political conflicts affected law students, and contributed, at least for some students, to skeptical views of law and legal reasoning.  In this final post, I will return to the dynamic set out in the initial post: the spread of an instrumental view of law within the legal culture, concomitant with a loss of faith in the social good.  Both of these aspects were in place by the 1970s.

Today an instrumental view of law is so taken-for-granted that it would be odd--redundant and obvious--for anyone to write an article declaring: "Hey, we have an instrumental view of law."  Yet, in the 1960s and 1970s, several such articles said precisely that, identifying it as a novel and worrisome development.  In 1978, Roger Cramton, the Dean of Cornell Law School, observed that an instrumental view of law had become "the ordinary religion of the law school classroom."  He wrote:

Today law tends to be viewed in solely instrumental terms and as lacking values of its own, other than a limited agreement on certain 'process values' thought to be implicit in our democratic way of doing things.  We agree on methods of resolving our disagreements in the public arena, but on little else.  Substantive goals come from the political process or from private interests in the community.  The lawyer's task, in an instrumental approach to law, is to facilitate and manipulate legal processes to advance the interests of the client.

Cramtom, and others at the time, attributed this view of law to the influence of the Legal Realists.

Reading this passage today, it is difficult to appreciate Cramton's alarm.  Of course we view law that way--what other way could there be?  Cramton recognized what we have forgotten, that earlier generations did not teach that law is an empty vessel to be wielded in an instrumental fashion.  Law was thought to have a built in content or integrity; it was comprised of substantive legal principles, not just process values.

To get a sense of this long defunct understanding, and how far we have moved away form it, consider this 1937 description by (Legal Realist) Max Radin of the original purpose of the case method:

The case method was, of course, a method of dialectic.  But its principal purpose was not that of training students in method but of inculcating in their minds certain legal principles which were regarded as valuable.  They constitute the 'right doctrine,' the 'true doctrine' or the 'right theory,' the 'true theory'--no one said the 'orthodox theory'--and if the student remembered the propositions and assumed them to be irrefutable, he had been well taught.

Although we still use the case method today, we (law professors) have inverted its thrust.   No longer are the cases examined to demonstrate the "right" doctrine.  We teach students to attack the analysis, finding weaknesses in the court's reasoning; we ask them to make the best arguments on either side, showing that the case could have gone either way, teaching them that legal rules are tools in the hands of lawyers.  We show students, as Llewellyn put it, "to manipulate the machinery of law."

The second relevant aspect of the period, as I indicated at the outset, was a loss of faith in the social good--either in the belief that a single common good exists, or that we can agree upon it.  This was also a theme in the legal literature of the 1970s.  Perhaps the most prominent example of this was Arthur Leff's "Unspeakable Ethics, Unnatural Law" article in the 1979 Duke Law Journal:

There is no such thing as an unchallangeable evaluative system.  There is no way to prove one ethical or legal system superior to any other, unless at some point an evaluator is asserted to have the final, uncontradictable, unexaminable word.

Leff's essay memorably ended with a plea: "God help us."

Today, no one would think to write an article making Leff's observations--just as no one to think to write an article announcing that we have an instrumental view of law--because the fact of intractable value disputes is now taken for granted.

Let me briefly recapitulate the core points made in this series of posts: by the1960s and 1970s, a purely instrumental view of law had taken over the legal academy; society was sharply divided by social and political conflict; people had lost faith in the idea of the social good, or that it can be agreed upon; and there was a great deal of skepticism about the government and about law.

Law as a Means to an End traces out the consequences and implications of these views in the contemporary legal culture, examining, in turn, theories of law, the practice of law, cause litigation, judicial appointments and judging, legislation and administrative regulation.  The final part of the book elaborates on ways in which these various trends threaten to corrode the rule of law.

One final note before leaving off: More than a few readers of these posts will object that law has always been seen and utilized instrumentally, regardless of whether the legal elite or lawyers previously claimed otherwise.  This reaction is correct, as I also show in the book.  But it is a mistake to conclude therefrom that the shift to a pervasively instrumental view of law within the legal culture has had no real consequences.  A radical shift in prevailing ideas inevitably has implications for action.

My thanks, again, to Dan Markel and the PrawsfBlawg crew for allowing me to tread on your turf.

Conflict in the Legal Academy, circa 1969-70, with Implications for Today

The first PrawfsBlawg post on Law as a Means to an End identified the key modern dynamic in the spread of an instrumental view of law within the legal culture, concomitant with a loss of faith in the social good.  These two components became firmly entrenched in the legal academy in the 1960s and 1970s, as I will indicate in the third post (coming this Wednesday).  But first, it is necessary to recognize the searing social and political events of this pivotal period, and their immediate effect on attitudes toward law.  Take a look at these extraordinary passages, excerpted from the "With the Editors" statements of the 1969-70 Harvard Law Review:

On the night of April 15, a conflagration raged between the police and demonstrators in Harvard Square.  Its destructive effects, however, spread far beyond the original participants and area.  Stationing themselves just a block from Gannett House [the home of the law review], scores of helmeted police cordoned off the Square from the north.  Many students stood in small groups outside the police barricade, silently watching and wondering about the events occurring a few blocks away.  Suddenly, and without any observable provocation from the bystanders, the police advanced, soon running and swinging their riot clubs wildly.  Students fled from the charging policemen and sought refuge in Gannett House or other nearby buildings.  Others were less fortunate.  An officer of the Review, trying to avoid the onrushing police, had his key in the lock of the Gannett House door when he was clubbed from behind by one of the two officers running by.  Neither stopped; the blow on the head was merely a gratuitous gesture by the guardians of the law.

...Police here, as in so many other cities, added recruits to the radical cause by their misguided attempts to bludgeon that very ideology.

The editorial statement from a another issue of the same volume remarked upon the "invasion of Cambodia and the official murders at Kent State, Jackson State, and elsewhere..."  In yet another issue, the editors linked ongoing events to their increasingly skeptical views of law:

At a time when so many venerable traditions are being skeptically scrutinized, if not harshly attacked, it is hardly surprising that legal reasoning is also attracting increasing criticism.  Growing numbers of students are questioning whether lawyer-like logic and analysis are indeed proper tools for contemporary problem solving.  Such students believe that the Law School and the method of analysis it teaches deliberately obscure rather than clarify relevant issues.  In assessing legal logic, at least one disgruntled student has termed it a "cerebral trickbag," which is presumably manipulated by the malevolent masters of the Establishment.

It is true that what passes for logic in some judicial opinions (and in many classrooms) is a little more than finely spun sophistry.  It is also important to note that pure logic does not offer a solution to all problems.  In reaching a great many solutions, a value judgment or aesthetic choice becomes inevitable, no matter how much the decision-maker may isolate and clarify the relevant issues by means of  careful analysis.  Indeed, in some cases the 'logical' solution may even be inappropriate because certain emotional or other supposedly illogical factors are proper considerations.

The preceding statements must be read as they were meant at the time--as an explicit repudiation of the legal process school, which was the dominant legal theory of that generation.  Harvard Law School was the home of the legal process school, developed out of the work of Felix Frankfurter, Lon Fuller, and, especially, The Legal Process course materials compiled by Henry Hart and Albert Sacks.

Legal process thinkers asserted that the role of the courts is, as Hart put it, "to be a voice of reason;" judging involves the "reasoned elaboration" of enduring legal principles.  The judicial development of these principles was described by Fuller as "the law 'working itself pure."  Courts were designated by the legal process school as collaborators with legislators in the development and rationalization of the law.  When interpreting legislation, judges were instructed to presume that "the legislature was made up of reasonable persons pursuing reasonable purposes reasonably."

This was the mainstream view of law in the legal academy throughout the 1950s and in to the 1960s.   The legal process account of judging was plausible in the 1950s because it implicitly relied upon the assumed happy consensus of this booming time--what Daniel Bell labeled "the apathy of the fat fifties"--a consensus that ignored the plight of black Americans, and was soon to be shattered by civil rights protests and anti-war protests.

The student editors of the law review were especially troubled by the fact that the legal process school, with its emphasis on reason and "neutral principles," implicitly and explicitly criticized the Warren Court as unprincipled and result-oriented.  The editors (in another Editorial statement) protested that the "compelling logic of the Frankfurter-Hart school has often appeard to impose a deadening hand..."  The Editors left no doubt about their sympathies, writing on the first page of the volume (on the occasion of his retirement): "To Chief Justice Warren, who with courage and compassion led a reform of the law while the other branches of government delayed, the editors respectfully dedicate this issue."

At the very outset of the 1970s, law students across the nation--and keep in mind that Harvard was not the most radical campus at the time--were skeptical of law and legal reasoning.   Many graduates from top schools--including 7 editors from the volume that produced the above quotes--became law professors.   Seminal works in law and economics and in Critical Legal Studies, both characterized by a deep skepticism of law and legal reasoning, were produced early in the decade, setting the stage for later developments in legal theory. 

Law as a Means to an End

I would like to thank Dan Markel for this opportunity to write a few PrawfsBlawg posts on my new book, Law as a Means to an End: Threat to the Rule of Law.  Although there are many blogs by and for law professors, this is clearly the blog for the up-and-coming generation.  The book should be especially interesting for this group--I hope--because it presents an intellectual history that helps diagnose the increasingly dysfunctional condition of our current legal culture.

Rather than be subtle, I will attempt to pique interest in the book by beginning with a blatant resort to the authority of a renowned blogger and legal theorist, the estimable (and generous) Larry Solum, who provided the following blurb for the book:

Brian Tamanaha's "Law as a Means to an End" is something very rare--a book that has the potential to change thinking about the law in fundamental ways.  The book accomplishes three substantial tasks with admirable brevity, erudition, and clarity.  First, it traces the history of "legal instrumentalism" in Nineteenth and Twentieth century jurisprudence and legal practice--a compelling story that illuminates the origins of our most basic assumptions about law.  Second, it traces the pervasive influence of instrumentalist thinking in contemporary legal thought--acutely diagnosing the intellectual underpinnings of phenomena as diverse as "cause lawyering" and the "law and economics" movement in the legal academy.  Third, it makes a compelling argument that the rise of instrumentalism has a fundamentally corrosive effect on the rule of law.  This is not just an important book--it is THE important book of legal theory for this decade.  "Law as a Means to an End" is superb.

In this first post, I will articulate the core theme of the book.

Law has not always been understood in consummately instrumental terms, that is, purely as a means to an end.  Up through the nineteenth century, the law was portrayed by the legal elite (and more widely) to have a built in content and integrity, comprised of natural principles, or of immanent community norms, or of the logical and inherent requirements of objective legal concepts.  Law was not thought to be an empty vessel that could be declared at will or filled in with any content whatsoever.

Beginning with Bentham and von Jhering, and taken further by Holmes, Pound, and the Legal Realists, reformers challenged this longstanding view, arguing that law is an instrument to serve the social good. 

In the course of the twentieth century, this view took hold, but with a twist.  The instrumental view of law swept the legal culture, while people lost faith in the notion of the social good--either no longer believing that is there is a common social good, or that we can ever agree on what it is.

A pervasively held instrumental view of law in a context of sharp group-based disagreement leads to a Hobbesean struggle of all-against-all within the legal order and over the legal apparatus itself.  In one arena after another, from the practice of law, to judges and judging, to legislation and administration, individuals and groups attempt to seize control of the law and to use it as an instrument to advance their own or their groups' agendas or interests--wielding the law as a coercive weapon against others.

The book centers on this dynamic and on its implications for the rule of law.  In the next post, I will say a bit about the 1960s and 1970s, providing a few fascinating quotes from this period that help illuminate the situation today.