Tuesday, January 25, 2005

What's Wrong with Law School

There is what seems to be a long running debate about the roles of law school in educating students. Are they trade schools preparing another generation of BigLaw associates or are they a professional school imparting students with a healthy respect for legal institutions. More and more the former seems to be the case. Some of my peers have gone so far as to say they see no real difference (save salary prospects) between law school and tractor trailer driving school down the road.

Now, it might be easy to romanticize the historical role of law schools in society. Yet, one of my professors ('47 Harvard, I believe) mentioned that he did not hear a the word justice used during his time at law school until his final semester. So then perhaps notions of justice have been absent from law schools for longer than the past couple of decades. (Without knowing if this is true or not, one might be tempted to point to perhaps the Progressive era as a turning point in legal academia, as it was in so many other aspects of American life.)

Of course, there are those who will say- why does it matter? I would argue that it is important for law schools to produce students who are fluent in the language of justice, not just black letter law for any number of reasons. Lawyers are (rightly or wrongly) the problem solvers of our society. As such, we have to understand what justice means and how to weigh competing moral claims in order to resolve disputes. Law could be such a dynamic force, but it is limited by its reliance on precedent (which is obviously valuable to society, to some degree) and its practitioners' imaginations. Of course, there are those visionaries who have not been, or were not, beat down by the tedium of law school. But, in general, law school does a very good job at putting blinders on its students, getting them to focus on micro issues of black letter law to the detriment of dialogue about whether a particular law is just or efficient or equitable.

To put it in more academic terms, law school emphasizes the positivist theory of law. We study, in the words of Hart, the concept of law. And, while Hart certainly improved on Austin, he still remains true to the positive tradition. What I would argue is not that law schools ought to ignore/avoid/neglect the question of what is law, but rather use that as a starting point for a dialogue over the normative question about what law ought to be.

Law schools are not only in the business of training future BigLaw associates, but must also be educating a new generation of legal reformers. In order to do so, they must place more emphasis on legal history, jurisprudence, the intersection of law and the social sciences, etc. Students should leave law school with a healthy understanding of the roots of the Western legal tradition and some semblance of a theory of justice (apologies to Rawls). If all someone knows is that a will requires x number of witnesses but cannot explain why that requirement is good or bad, how can that person be expected to move law, and society, forward?


Anonymous Anonymous said...

I think part of your critique stems from the fact that eduation in the humanities in our country is so sorely lacking. Many students do not get a sufficient sense of history, social science, etc before they arrive. How can law schools bear such weight?

A lot of law schools rely on the assumption that the students arrive with greater knowledge, more maturity, more mastery of history, philosophy and critical thinking. Some do, and many don't. Because law schools and the profession are one major bulwark against rapid change and social unrest, You're now caught with the old way which assumed too little, and the new clamoring voices which assume too much.

Also, on justice: Didn't Schopenhauer say that it is best thought of as a negative concept? We don't necessarily know justice when we see it, but we know injustice.

5:00 PM  

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