In this post I use the terms theoretical and practical to distinguish two types of legal thought. In reality I think that there are many very practical applications of what I am calling theory. Neither term should be looked at as a pejorative. Just the limits of language. Theory represents more of the traditional "Paper Chase" style class as opposed to a class that focuses on what the student would face in the courtroom/practice.
University of Chicago Law Professor Eric Posner wrote and article for Slate about the problem of legal education. Posner does a good job laying out the problem: too many law students, too few jobs. It's a problem that many other legal professionals have been looking at with suggestions ranging from letting law students take the bar after two years of school to enforcing stricter standards at law schools to reduce the number of students who can get in. Posner's article explains the problems with those ideas, so I won't repeat him. I will point out one of the problems I see as a law student.
I LOVE law school. No joke. I love reading cases. I love talking in class. I suppose that I would be considered a gunner. Gunner is the derogatory law school term which is approximate to teacher's pet...except a million times worse. Gunner's ruin classes. They ask stupid questions. They think they know everything. They blow the curve. They think they are better than everyone else.
I don't think that I'm a gunner. I don't care about my class rank. I don't go to networking events. I don't read study aids or outlines from the internet. I just really, really, really like the law. When I was working as a secretary for 9 years (before law school) I would be reading court opinions. For fun. FOR FUN. I think this is fun.
Many of my classmates do not have the same opinion.
For them, law school is simply the place they have to be before they can go work in the family business. Or before they can go out and help people. I am sure that sitting around and talking about the theoretical underpinnings of evidence law makes them want to die. They don't care about the philosophy behind the law. They just want the clear black letter law so that they can take the bar and then practice. Maybe the goal is to make money. Maybe it is to help save the world. In either case, learning about WHY the law is the way it is doesn't matter.
Now, I disagree. I think that law school shouldn't really be about teaching the law, but teaching you how to learn the law yourself. Knowing the philosophical underpinnings of legal arguments and how to dissect them makes it possible to quickly learn lots of different areas of the law. It's sort of like learning a language. Some people would rather just take classes in Spanish, French, Italian, and Romanian classes to learn how to speak them. Other people would rather take a Latin class to learn the underpinnings of those languages, and then pick up some books to learn the details on them. Both are valid ways to learn. But they appeal to very different people.
I think that my school does a pretty good job of having a mix of classes available so that people can choose Professors who are more theory and ones who are more practical. But you only learn these things via word of mouth from other students, and inevitably you will end up in a class that you hate because it isn't your type of style.
There are schools that are nothing but skills training (Stetson for example) but they tend to be lower ranked and more expensive. Part of this is the weird emphasis placed on college rankings. Law school is a big decision and so you pick a school that is well ranked. 25% of the score used in the ranking is based on academic reputation aka what people think of the articles written by the professors. A focus on scholarship, and not practical experience, determines this part of the ranking. This gives a boost to schools that hire theoretical teachers over practical ones. That boost means that you go up in the rankings. That means that students with higher LSAT scores and GPAs start applying. This makes your score go up even higher. You get more attention from academics who want to work for you. Higher rankings. More people.
The problem is that many of the students who come to you because of your rank aren't interested in your brilliant legal scholars. They want to learn the law and get into practice. They know what they want and that the subtle difference between purposivists and intentionalists is not going to be involved in the job that they get.
They are brilliant students who came here because of your ranking and they have an expectation of learning the law. Not about the theory of property from classical literature or what contract law would have to say about The Little Mermaid. And they get really, really angry because they think that the school is wasting their time teaching them about these unimportant theories instead of the good stuff.
Or, why are you making me learn a dead language when I just want to be able to speak Spanish?
Two year law school won't solve the problem (as Poser mentions in his article adding more lawyers into the already flooded job market won't make more jobs appear) and neither will a switch to a skills training curriculum. (which is both more expensive than classroom training, but also mind numbing to students like me). The first step is to get away from the useless law school ranking system. Create more differentiation between law schools so that students can find one that fits them instead of relying on rankings (which we have gotten rid of in our perfect world). Make sure that there is access to public practical law schools as well as theoretical ones. Work with students ahead of time to see which one they'd like more. Instead of seeing law schools as in competition with one another for the best students, recognize that it should be about placing students at the school where they will do best, even if that school isn't your own.
But Posner's last point, that we need more government funding for legal services. Yes. Very much so. Sadly, I think that we'll see my ranking free utopia before we see an increase in government funding for lawyers.
And I think that we'll see Gigli 2 before either of those things happen.
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