Is "Thinking Like a Lawyer" Really What We Want to Teach?

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Is "Thinking Like a Lawyer" Really What We Want to Teach? Is "Thinking Like a Lawyer" Really What We Want to Teach?

Nancy B. Rapoport

University of Nevada, Las Vegas -- William S. Boyd School of Law

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Rapoport, Nancy B., "Is "Thinking Like a Lawyer" Really What We Want to Teach?" (2002).

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Is “Thinking Like a Lawyer”

Really What We Want to Teach?

Nancy B. Rapoport

“You come in here with a head full of mush and you leave thinking like a lawyer.”

Every law professor, and almost every law student,

is familiar with this quote

from the movie The Paper Chase. Whenever law faculties are asked what it is

that they intend to pass on to their students, the phrase “thinking like a

lawyer” is the first thing that they say.

Often, that is the only thing that they

Professor of Law, University of Houston Law Center. Special thanks for this paper go to H.C.

Chang, Alison Chien, and Harriet Richman, for their wonderful research, and to Seth Chandler,

Susan Evangelist, Debbie Hirsch, Alex Kopatic, Peter Linzer, Michael Olivas, Greg Robertson,

Morris and Shirley Rapoport, Peter Shaw, Ben Turin, Jeff Van Niel, and Bob Wimpelberg, as

well as to the participants in ALWD’s outstanding conference, Erasing Lines: Integrating the Law

School Curriculum, held at the University of Minnesota from July 26-28, 2001. Although it was

mighty intimidating to present a paper at a conference for those whose scholarship is in legal

writing, it was also exhilarating, and I’m also extremely grateful to my co-panelists—Scott Bice,

Christine Coughlin, Molly Lien, Sandy Patrick, Arnold Siegel, and Deborah Schmedemann—

and to the audience for giving me such good food for thought.

2. The Paper Chase (Twentieth Century Fox 1973) (motion picture).

3. As the years go by, however, fewer law students seem to have seen the movie. Peter

Linzer has pointed out to me (in an e-mail that included comments on an earlier draft) that the

movie itself, having hit the screens in 1973, is older than most of our students. E-mail from

Peter Linzer, Prof., U. Houston L. Ctr., to Nancy Rapoport, Dean & Prof., U. Houston L. Ctr.,

Thinking Like a Lawyer (June 21, 2001) (copy on file with author).

4. Professor Linzer has this to say about “thinking like a lawyer”:

I have a general thought on “thinking like a lawyer.” I think it is valuable to teach

precision, but there is always a danger in focusing too much on narrow definitions of

holding and dictum, etc., and ignoring the fact that thinking like a lawyer really

should involve a paradox: it is essential to be able to marshal facts and law, make

distinctions and avoid distractions from irrelevancies; but it is also essential to realize

that many of those distractions are real. I found a tabloid in which a “columnist”

called for killing the lawyers for Timothy McVeigh, and while this is obviously

despicable, manipulative and stupid, it also was also pandering to a visceral feeling in

the lower class reading public that is real. Merely to dismiss it as irrelevant and

pandering is to miss part of the issue, the emotional side of the defense of an

obviously guilty defendant with respect to the public, and, even more, the emotional

impact on the defense lawyers. If we just teach that we need lawyers who do not set

themselves up as the judges of defendants, etc., etc., we don't really teach enough,

and if we train our law students to reject the irrational side of life, we put out lawyers

who can't fully deal with life. And who may well burn out at 50, as so many lawyers

do.

Journal of the Association of Legal Writing Directors

say about legal pedagogy. From the conversations that I have had with other

law professors, the theory seems to be that legal rules come and go, but that

the process of dissecting legal arguments, analyzing the available rules, and

constructing cogent statements about what the law is (or should be) stays

constant.

Why are we so fixated on the “thinking” process, rather than the “doing”

process? No one expects a doctor to “think” like a doctor when she leaves

medical school. We expect her to be a doctor.

The same is true of those who

Id. The recent movement advocating therapeutic (or holistic) jurisprudence also emphasizes the

need to deal with the irrational as well as the rational. See e.g. Laura E. Little, Negotiating the

Tangle of Law and Emotion, 86 Cornell L. Rev. 974, 977 (2001); Marjorie A. Silver, Love, Hate, and

Other Emotional Interference in the Lawyer/Client Relationship, 6 Clin. L. Rev. 259, 259-60 (1999);

Kenneth A. Sprang, Holistic Jurisprudence: Law Shaped by People of Faith, 74 St. John’s L. Rev. 753,

768-71 (2000).

5. Several of my colleagues disagree with me when it comes to the “thinking like a

doctor” argument. Ben Turin, an attorney with Vinson & Elkins L.L.P., suggests that thinking

like a doctor—and thinking like a lawyer—both involve the same skills:

From the little that I know about medical education (for the successful practice of

the profession of medicine), my impression is that the ultimate goal of the training is

to teach individuals to “think like doctors.” Viewing the totality of both educational

experiences will show that they both place primary focus on “thinking like a ____”

(fill in [the] blank), place secondary focus on memorization of the basic

principles/rules of the profession, and place tertiary emphasis on the other skills that

are necessary for successful practice of the profession.

E-mail from Ben Turin, Atty., Vinson & Elkins L.L.P., to Nancy Rapoport, Dean & Prof., U.

Houston L. Ctr., Thinking Like a Lawyer (July 19, 2001) (copy on file with author) [hereinafter E-

mail, Turin I]. Turin goes on to suggest that the more elite the school, the more the emphasis

is on “thinking,” rather than on “doing,” and that the way to separate the more elite professions

from the more trade-oriented jobs is by determining what proportion of the job is spent in

communication, problem-solving, and repetitive/mechanical activities. The more brainwork

used, the more elite the profession. Id. Perhaps

[t]he differences in how the professions are taught are due more to the different

natures of the practices, not [the] differences in educational goals. It is easier to bring

the practice of medicine to the medical school[ ] than it is to bring the practice of law

to the law school. In medicine it is possible for students to obtain exposure to the

broad spectrum of medical problems and procedures in a teaching environment. In

law, however, the legal exposure in the law school is limited to those areas of law that

cater to the indigent (the typical clients of a law school clinic). This natural

restriction prevents most students from learning that which they will practice inside

the four walls of the law school. In place of intensive clinical exposure in law school,

most law students obtain the hands-on piece of their education informally through

employment outside the law school.

E-mail from Ben Turin to Nancy Rapoport, Thinking Like a Lawyer (Sept. 17, 2001) (copy on

file with author) [hereinafter E-mail, Turin II]. Most of the time, that “outside school” hands-

on training is both well conceived and well executed. But what if it isn’t? What if the law

students are learning bad habits? We know that some law students are “learning” bad ethics

from some lawyers in practice. See Lawrence K. Hellman, The Effects of Law Office Work on the

Formation of Law Students’ Professional Values: Observation, Explanation, Optimization, 4 Geo. J. Leg.

Is “Thinking Like a Lawyer” Really What We Want to Teach?

have been trained as engineers, research scientists, car mechanics, and air

traffic controllers. When they complete their training, they have been

exposed to the requisite skills

needed in their careers. (They won’t be as

good as their more experienced colleagues, but they will have the rudimentary

skills that they need.) Every profession depends on the use of inductive and

deductive reasoning, but it also depends on the person’s ability to do something

after reasoning out what the problem is. Even the most abstract philosopher

“does” something in addition to “thinking”: he publishes his thoughts and

tentative conclusions in a way that furthers the discourse of philosophy.

What Does “Thinking Like a Lawyer” Mean?

Part of the problem may be that we don’t agree on the definition. Is

“thinking like a lawyer” shorthand for analyzing cases and statutes (applying

both inductive and deductive reasoning and criticizing faulty reasoning), and

communicating the analysis coherently? Is it shorthand for extrapolating

principles of law from bits and pieces of authority (cases that are on-point or

nearly so; analogous areas of law; law review articles)?

At the ALWD conference, Dean Scott Bice took issue with my thesis that

“thinking like a lawyer” leaves out important skills that we want our graduates

to have.

He suggested, instead, that the very definition of “thinking like a

lawyer” includes:

the interpretation and use of legal materials (cases, statutes,

administrative orders, private contracts, etc.) to serve clients’ interests.

Sometimes serving those interests involves using legal knowledge for

counseling, sometimes for negotiation, sometimes for lobbying for a

change in a relevant statute, sometimes for litigation. Moreover, in

certain fora (an appellate court or a legislative body), “thinking like a

lawyer” requires normative arguments, which involve considerations

Ethics 537 (1991). If lawyers might teach bad ethics, they might also teach bad mergers and

acquisitions work, bad brief writing, etc.

Turin is not alone in linking, and then distinguishing, the medical profession and the legal

profession. See e.g. Bryant G. Garth & Joanne Martin, Law Schools and the Construction of

Competence, 43 J. Leg. Educ. 469, 503-05 (1993); Elizabeth Mertz et al., What Difference Does

Difference Make? The Challenge for Legal Education, 48 J. Leg. Educ. 1, 18 n. 57 (1998). I guess the

phrase, “thinking like a lawyer,” sticks in my craw because it assumes that analytical thinking is

the sole province of lawyers—that everyone else thinks with less skill. But, then, I have always

been accused of being anti-elitist. So sue me. (Or, better yet, just think of suing me.)

6. And, presumably, they have acquired some of those skills.

7. Dean Bice raised some factual questions—“do law schools believe that training

students to ‘think like lawyers’ is their sole mission [and] do they define ‘thinking like lawyers’

rather narrowly, as Dean Rapoport seems to do, or do they adopt a broader definition,

including some of the items she excludes?”—and some normative ones, such as whether all law

schools should have the same mission or the same curriculum. Scott H. Bice, Good Vision,

Overstated Criticism, 1 J. ALWD 109, 109-10 (2002). These are great questions.

Journal of the Association of Legal Writing Directors

of such values as efficiency, corrective justice, and wealth

distribution.

All of these skills are essential to the development of a lawyer. But they still

focus on the “thinking” part, rather than on the transition from “thinking” to

“doing” to “being.” And Dean Bice acknowledges that the “doing” is also a

crucial part of legal education.

All of the developments in clinical education,

problem-oriented classes, and role-playing are both necessary and welcome

innovations.

But those developments are also very expensive, which may be why law

schools limit their more practical offerings. Clinics require a low student-

faculty ratio, and low student-faculty ratios in one course will mean higher

student-faculty ratios in others, unless the size of law faculties increases

dramatically. Moreover, all of these innovations are limited to the students

who attend the courses that use them.

Not every law student takes a clinical

course. Not every faculty member uses the “problem method” or role-

playing. I’m not saying that every faculty member should: what a faculty

member chooses to use to cover the material is a highly individual choice,

8. Id. at 110.

9. Dean Bice further states:

Even if most legal educators would adopt a broader definition of “thinking like

a lawyer”—one that involves a lot of “doing” through classroom hypotheticals—I

doubt that they would say that this is the law school’s sole mission. They would

agree, as Dean Rapoport urges, that the schools have a responsibility to train students

to “do” law. And, again, the curricula evidence law schools’ acknowledgement of

this responsibility. . . . The proliferation of clinical courses, both simulated and those

involving live clients, has been remarkable. . . . Further, the relevance of other

disciplines is widely recognized. Thus, courses in subjects such as accounting for

lawyers, social science methodology in law, and a string of “law and . . .” offerings are

common.

Id. at 111. And Dean Bice goes on to point out that many law students work during law school,

which gives them additional exposure to “doing.” Id. See also Judith Wegner, The Changing of

Course Study: Sequential Reflections, 73 N.C. L. Rev. 725, 735-739 (1995).

10. Both the Society of Law Teachers (SALT) and the Association of American Law

Schools (AALS) have encouraged new and experienced teachers to experiment with new ways

of reaching their students. I’m sure that every school has made significant advances in the

types of courses that it offers and the ways that it reaches out to students with different learning

styles. I applaud that. But there’s a world of difference between having an individual professor

try something innovative and having the law school itself decide to be innovative. I want to see

more law schools try new things: courses like Stanford’s “deals” course or Northwestern’s

outreach to students with “real-world” experience. See e.g. Orin S. Kerr, The Decline Of The

Socratic Method At Harvard, 78 Neb. L. Rev. 113 (1999); Paul Bateman, Toward Diversity In Teaching

Methods In Law Schools: Five Suggestions From The Back Row, 17 Quinnipiac L. Rev. 397 (1997);

Steven I. Friedland, How We Teach: A Survey Of Teaching Techniques In American Law Schools, 20

Seattle U. L. Rev. 1 (1996). I want to see an active, thriving curriculum committee at all

schools—one that constantly asks what could be improved in the school’s curriculum.

11. And many of these courses are litigation-oriented, rather than transaction-oriented.

We need to teach both sets of skills to all of our students.

Is “Thinking Like a Lawyer” Really What We Want to Teach?

protected by the concept of academic freedom. But law schools could do

much more to aid the transition from theory only to theory with applied skills.

Helping law students apply a newly learned theory is more likely to help them

better understand the theory.

If we say that we want our students to learn to

think critically, we should give them a more varied menu of ways to learn how

to do that.

Yet it seems to be hard-wired in most law faculties that there is something

special about thinking like a lawyer—that the critical thinking involved in legal

analysis is different in kind from that used in other fields. Is that because law

changes faster than does, say, physics or economics? That can’t be true.

Scientific studies that change the way we think about the world happen all the

time, from the discovery of quarks to the beginnings of a “theory of

everything” that would reconcile the competing theories of quantum

mechanics and relativity.

The field of economics is using more mathematics

than it has in the past.

In every discipline, old ways of thinking about the

discipline are abandoned, regularly replaced with new ones. In that respect,

there is nothing special about the law.

Why Do We Emphasize

“Thinking Like a Lawyer” in the First Place?

I’m sure the case method of law teaching has something to do with the

emphasis on thinking like a lawyer. When the case method first came into

vogue, the only way to learn the law—other than by following around

practicing lawyers—was to reason it out by seeing what various courts had

done with particular fact patterns.

Remember, though, that around the same

12. See generally J. Greeno, A. Collins & L. Resnick, Cognition and Learning, in Handbook of

Educational Psychology 15-46 (D. Berliner & R. Calfee eds., 1996); Problem-Based Learning: A

Research Perspective On Learning Interactions (Dorothy H. Evenson & Cindy H. Hmelo eds.,

Lawrence Erlbaum Assoc. Inc. 2000). I found these sources thanks to my colleague at the

University of Houston College of Education, Dean Robert Wimpelberg. See e-mail from

Robert Wimpelberg, Dean, U. Houston College Educ., to Nancy Rapoport, Dean & Prof., U.

Houston L. Ctr., Sources (Sept. 20, 2001) (on file with author).

13. See Brian Greene, The Elegant Universe: Superstrings, Hidden Dimensions, and the Quest for

the Ultimate Theory 15-17 (Vintage Books 2000).

14. See Sheila C. Dow, Presentation, The Use of Mathematics in Economics (ESRC Public

Understanding of Mathematics Seminar, U. Birmingham, May 21-22, 1999) in Shelia C. Dow,

The Use of Mathematics in Economics <http://www.ioe.ac.uk/esrcmaths/sheila1.html> (May 21-

22, 1999).

15. Everyone is talking these days about new fields of law, such as cyberlaw or the law

regulating cloning. And these fields do require serious thinking about whether older legal

principles apply, or whether entirely new legal theories must be invented. But how is that

different from new discoveries in any other field? See e.g. Kirke La Shelle Co. v. Paul Armstrong

Co., 188 N.E. 163, 165-67 (N.Y. 1933) (discussing how traditional contract law applies to

contracts involving the “back-then” new invention of “talkies”).

16. Before Harvard Law School introduced the case method, via Christopher Columbus

Langdell’s vision, lawyers-to-be apprenticed with experienced lawyers, and they learned black-

letter law by copying treatises over in their own handwriting. See Stephen M. Johnson,

www.lawschool.edu: Legal Education in the Digital Age, 2000 Wis. L. Rev. 85, 86-89.

Journal of the Association of Legal Writing Directors

time that the case method came into vogue, the golden age of scientific

discovery was flourishing in a variety of disciplines.

In fact, Langdell

deemed the law library to be the laboratory of law students.

What the law

students of that time were doing was much the same as what mathematics

students were doing, or chemistry students, or even philosophy students.

Inductive and deductive reasoning is not the sole province of law students,

and it never has been.

Perhaps the focus on thinking like a lawyer comes from the composition

of most law faculties. A significant majority of law professors has fewer than

five years of practice experience.

When I was trying to break into law

teaching, back in 1991, I had about five years of practice experience under my

belt, and I was nervous that law faculties would think that I had been in

practice “too long.” I had heard stories about how law faculties worried that

too many years of practice “ruined” the minds of budding law professors. If

many of those in law teaching have had fewer than five years of practice

experience, then they aren’t likely to value practice experience that much.

17. See Peter Linzer, Rough Justice: A Theory of Restitution and Reliance, Contracts and Torts,

2001 Wis. L. Rev. 695, 702. The “traditional” method of teaching law school, with large courses

and a single examination at the end of the course, is a very inexpensive way to teach students:

no labs (except for the library), no research assistants, and no graders. See e-mail, supra n. 3.

18. This original view of the library as laboratory has both good points and bad points.

Certainly, the cost of educating law students is less than the cost of educating Ph.D. candidates.

The ratio of student to teacher is higher in law schools, the one-on-one attention is less, and

law schools generally invest more in books (and now, online materials) than they do in

expensive lab equipment or high-powered, number-crunching computers. As we move

towards more experiences that involve low student to faculty ratios—e.g., clinics and practica—

the assumption that legal education is less expensive than Ph.D. education starts to fall apart.

19. See Robert J. Borthwick & Jordan R. Schau, Gatekeepers of the Profession: An Empirical

Profile of the Nation’s Law Professors, 25 U. Mich. J.L. Reform 191, 217-219 (1991) (concluding that

although nearly eighty-percent of professors in the sample had an average practice experience

of 4.3 years, only one-quarter of the sampled professors had more than five years of practice

experience). In their groundbreaking research in sex and race issues in law faculty hiring,

Professors Deborah Merritt and Barbara Reskin found the following factors to be most

important in hiring decisions:

In addition to isolating the effects of sex and race on law school hiring, our analyses

illuminated the role of academic achievement and work experience. Law faculties

responded to many paper credentials in a predictable manner. Graduation from

prestigious undergraduate and law schools, membership and editorship on the main

law review, experience as a federal court of appeals or United States Supreme Court

clerk, and possession of a master's or doctoral degree in a field other than law all

helped candidates secure appointments at more prestigious law schools. Some of

these variables also fostered initial appointments at higher ranks or more desirable

teaching assignments. Together, these eight variables accounted for almost three

quarters of the variance in institutional prestige explained by our analysis.

Deborah Jones Merritt & Barbara F. Reskin, Sex, Race, And Credentials: The Truth About

Affirmative Action In Law Faculty Hiring, 97 Colum. L. Rev. 199, 275-76 (1997).

20. Although a lot of lawyers struggle with cutting-edge legal theories in their work, they

are unlikely to publish their thoughts in the types of journals that law professors read, thus

contributing to the false assumption that legal practice is mostly scrivener’s work or bombast.

Is “Thinking Like a Lawyer” Really What We Want to Teach?

Instead, they are going to value those credentials that most resemble theirs, or

those of faculties at the elite schools, on the theory that academic credentials

are better predictors of law-professor behavior than are practice credentials.

How Do We Measure the Ability to “Think Like a Lawyer”—

and Does that Measurement Do the Trick?

In most schools, law students receive grades,

and these grades purport

to distinguish those who are good at “thinking like a lawyer” from those who

are not. If grades were, in fact, good predictors of writing ability and

analytical ability, then perhaps this preference for academic credentials over

practice credentials would make sense. Certainly, large law firms tend to look

for high grades when they are deciding which students to interview.

Judicial

clerkships tend to go to those with good grades and law review experience.

High-status employers (including law faculties) want to minimize the risks of

making expensive hiring mistakes. To the extent that the budding lawyers (or

budding law professors) have already been trained in writing and analytical

skills, employers will expend less time on training in those areas. But, even at

their best, grades are only related to the testing of material that the students

are supposed to have learned and are not necessarily the best predictors of

their performance as lawyers.

Law professors have the same problem when they try to get practitioners to read their work:

Most lawyers don’t spend a lot of time leafing through law reviews, unless there’s an article that

directly pertains to their research needs.

21. Some schools use a modified grading system, like “high honors”/“honors”/“pass”/

“fail”; many schools allow students to take at least some courses on a pass/fail basis. Daniel

Keating, Ten Myths About Lawschool Grading, 76 Wash. U. L.Q. 171, 178 (1998).

22. Of course, this principle applies to faculty appointment committees as well. If we

selected a new faculty member by grades alone, we would miss all of the other necessary traits

that we would want a new colleague to have. That’s why many schools use a “job talk,” in

which the candidate presents her research to the faculty and answers any questions that follow,

as part of the full-day interview process. The job talk is a decent beginning to determine

whether the candidate has developed any teaching skills, and the candidate’s curriculum vitae

will indicate whether she has a history of publishing. When the job talk is coupled with small-

group meetings with faculty, the full-day interview should reveal whether the candidate has

developed a decent research agenda. Because we care whether a new hire can teach and

whether she will continue to produce good research, the full-day interview tests both of these

skills. It is nowhere near a perfect test, but it’s a better start than taking a candidate from room

to room and asking about her favorite courses in law school. What I will never understand is

why law schools focus so much attention on the grades of a lateral hire, rather than on her

demonstrated ability to teach (evaluations) and research (publication record).

23. I tell this to law firms all the time, especially the ones that focus on hiring students in

the top ten- or twenty-percent of the class. For most courses, grades are based on a single

examination at the end of a semester. They don’t measure research ability, and they certainly

aren’t good at measuring writing ability (which is at a nadir in exam-writing). See Vernellia R.

Randall, Increasing Retention and Improving Performance: Practical Advice on Using Cooperative Learning

in Law Schools, 16 Thomas M. Cooley L. Rev. 201, 205-12 (1999). They also don’t measure the

character of a given candidate. But try telling that to a law firm that wants to use the grades of

its new hires as a measure of its own prestige.

Journal of the Association of Legal Writing Directors

The traditional rationales for using grades to select candidates to interview

can be classified broadly as “time” and “judgment” justifications. Here is

what I’ve heard, and also what I think, about these rationales.

• “Law firms have a limited amount of time to select from among too many

candidates, and grades are a way of winnowing the field in a way that

acknowledges how professors think about their students.”

Some professors may think that the students who get their As are their

“best” students; but many of us know that some of our best students—for

one reason or another—do not always get the best grades on our exams. I

have, in fact, written some recommendations that acknowledge that a

particular student’s grade wasn’t good, but that my conversations with her

indicate that she understood the material at a sophisticated level.

• “Our interview process tells us about the candidate’s ability to deal with clients,

and the candidate’s grades tell us if she can focus her attention on a particular

project.”

When law firms interview students, they may be able to screen the

obvious jerks from the others, but they aren’t going to be able, either in the

twenty-minute initial interview or the subsequent full-day interview, to detect

the more subtle characteristics of a given candidate. Can the candidate think

on his feet about a legal problem? Does the candidate shoot from his hip too

much? Does the candidate cooperate with colleagues? Will he treat opposing

counsel professionally? Will he tell the truth when he has made a mistake?

• “Good grades indicate that the candidate can master a large amount of material

and obsess about details—in other words, that the candidate can work hard.”

Perhaps, but does the absence of good grades mean that a candidate can’t

master material, can’t obsess, or doesn’t work hard? Might the absence of

good grades also mean that the candidate couldn’t write the type of answer

that the professor rewards? We know that different professors reward

different skills. Student rumors abound at exam time: Professor A is an

issue-spotter; Professor B likes “tricks” and “twists” in answers; Professor C

will give you a better grade the more bluebooks that you fill up. At one

24. Of course, a law student hired to be a summer clerk will have all summer to

demonstrate teamwork, honesty, diligence, and people skills. So, if the law firm guesses right,

the summer will be further proof. What about the expense when a law firm guesses wrong?

Judges know that getting a bad clerk is a waste of that clerkship slot. Most judges,

therefore, require some demonstration that the candidate can write and research well—a writing

sample or an editorship on a law journal. But most of them also rely pretty heavily on grades to

do the initial cut. For judicial clerkships, grades may be a decent way to winnow out students.

But don’t judges need to test some of the same skills that law firms should test? Honesty and

diligence are just as necessary for judicial clerks as they are for fledgling lawyers.

Is “Thinking Like a Lawyer” Really What We Want to Teach?

extreme—a student has no good grades at all—it is possible to conclude that

the student doesn’t have the ability to write any sort of good exam answers.

Extrapolating from bad grades that the person will make a bad lawyer is too

much of a cognitive leap, although the high salaries that law firms pay to

novice lawyers may necessitate that they do not take a risk on someone with

uniformly bad grades.

Someday, I’d like to do a study to determine exactly what grades do

measure. The artificiality of the exam-taking conditions and the limited

amount of time devoted to answering exam questions make it difficult to

measure just what a student has learned in a given course. Moreover, to the

extent that law school courses are graded on a curve, they do not measure a

student’s mastery of the material in an absolute sense; rather, they measure a

student’s mastery as compared to the mastery of other students

simultaneously enrolled in that course.

I know one thing, though: exams

aren’t a particularly good way to measure the skills involved in thinking like a

lawyer.

There is an actual skill measured by grades on law exams: the ability to

perform well in answering law exam questions. The best examination answers

go beyond IRAC

to something on the order of IRAC+: not only an analysis

of the particular issue raised by the hypothetical, but also a sense of whether

the analysis and conclusion make logical sense or fit into the larger theoretical

scheme. Law students think that there’s something mystical about writing

exam answers, but I don’t agree. If we drill law students on how to apply

facts to hypothetical situations,

and teach them how to prove their

conclusions, step by step,

they can do reasonably well on exams, even if they

don’t get all the way to IRAC+.

The unfairness comes when we commingle the issues of whether a

student has learned the subject with whether she has learned how to write a

good exam answer. The fact is that law professors, untrained in exam-writing

25. Randall, supra n. 23, at 207 (“Under the dominant teaching methodology, we classify

and sort students not on what they learn (criterion-referenced), but on how they compare to

other students (norm-referenced).”). See Jay Feinman, Law School Grading, 65 UMKC L. Rev.

647, 648-50 (1997); John Mixon & Gordon Otto, Continuous Quality Improvement, Law and Legal

Education, 43 Emory L.J. 393, 457 & n. 222 (1994); David E. Van Zandt, Book Review, 64 Tex. L.

Rev. 1493, 1493 n. 2 (1986) (reviewing Robert Klitgaard, Merit at the Right Tail: Education and

Elite Law School Admissions Choosing Elites (N.Y. Basic Books 1985)).

26. The well-known acronym for Issue, Rule, Analysis, Conclusion.

27. This is one of the areas in which legal research and writing courses can shine. Such

courses, when taught correctly, can provide law students with the continuing feedback

necessary to understand the link between a rule of law and an analysis of a particular set of

facts. This is also an area in which classroom teachers could do a much better job by working

some form of “what I want to see on my exams” into their in-class discussions.

28. I try to remind students about the process of doing “proofs” of theorems in

geometry (or, for those more mathematically inclined, calculus). The necessary skill is the same

in both processes. Taking the exam grader step by step through the analysis, instead of making

a series of cognitive leaps, makes for a much better (and better rewarded) exam answer.

29. See Randall, supra n. 23, at 220 nn. 59-60 (discussing how certain learning techniques

can improve students’ use of “higher-level” reasoning skills).

Journal of the Association of Legal Writing Directors

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technique, are bound to conflate the two issues, and the inability to perform

well in exam-writing will distinguish among students who may, in fact, know

roughly the same amount of material. Professor Vernellia Randall emphasized

this point in an elegant way:

Imagine, please, taking a class in piano playing. Assume the

teacher focuses all of her effort on analyzing sheet music of great

musicians. At each class, students are called on to dissect, digest,

analyze and compare various works. Occasionally, they are asked to

play very short snippets, but most of the time they read and discuss.

At the end of the course, when the students have learned everything

there is to know about the treble and bass clefs, timing, notes, beats

and rhythms, the student is asked to take a final exam, which consists

of playing a piano piece [she has] never seen before. [She is] given no

time to practice the piece. The piano is wheeled in and the students

proceed. Assume the professor discloses to the students this testing

practice, but adamantly assures the students that if they prepare for

class diligently they will be prepared for the exam. Who will do well

on the exam? Will it be the person who has never sat down to a

piano before this class? Will it be the student who ignores the

professor’s assurances and takes piano lessons independently? Will it

be the person who has taken piano as a child or during college? What

obligation does the professor have for teaching the student who has

never sat down to a piano before?

When it comes to writing law exam answers, some folks “get” it.

Some

don’t. Some can be taught how to take exams. Some can’t. And after the

first round of grades, it is hard for those who don’t “get” exam-writing to

catch up in GPA to the level of their peers who do get it. What we are

measuring isn’t “thinking like a lawyer,” it’s “writing like a law professor.”

Nor is it true that most of the rest of what goes on in the “doctrinal” or

“substantive” side of legal education helps law students to think like lawyers.

Examinations, as I have said, do not reflect the ability to think like a lawyer.

The other method of grading “substantive” courses—writing a paper—does

not do the job, either. From the seminar papers that I’ve seen over the years,

30. Randall, supra n. 23, at 202 (footnote omitted). Although law professors may use

their class discussions as training for how to write a good essay question, it is rare to see a

professor explicitly link the two skills in class, and rarer yet for the professor to drill the skill of

exam-taking in a substantive law class.

31. Even for those students who do “get” law school exam-writing, the main types of

examinations—issue-spotters, short answers, or multiple-choice—barely allow for the display

of any analytical ability. The top grades go to students who write cleverly, putting in a twist that

the professor may not have thought about, or taking a train of thought to an illogical

conclusion so that they may demonstrate how silly a particular legal rule is.

32. Or, as Professor Randall points out, “We primarily teach one set of skills (oral

analytical skills); we test another (written analytical skills).” Randall, supra n. 23, at 202-03

(footnote omitted).

Is “Thinking Like a Lawyer” Really What We Want to Teach?

101

seminar papers in law school are not that much different from undergraduate

seminar papers. The process of “thesis, explication, conclusion” is a valuable

skill, but it is not distinctly a lawyerly one. The other extensive writing

experience, after the first-year legal writing program that most law schools

have,

comes from law review work, and the skills involved in cite-checking

and editing law review notes and articles are much like being an apprentice

law professor.

On the other hand, the writing of a law review note comes the closest to

what I think we mean when we say that we want students to think like

lawyers. In writing a note, a student finds a problem or conflict in the law,

critiques how others have dealt with the problem, and proposes a solution.

Of course, we don’t grade law review notes. If we did, I’d feel more

comfortable saying that we were measuring the skill of thinking like a lawyer.

Why is it that we are grading things that don’t relate to thinking like a

lawyer, and not grading things that do relate?

In retrospect, it’s not that

surprising. Law professors are not trained in law-teaching or exam-writing

techniques. They are just thrown into law teaching and told to learn to swim

on their own.

The model of law teaching that bases a course’s grade on a single law

exam is one of the single worst pedagogical mistakes that legal education has

made. Name one other field in which students are given little to no feedback

33. One of the most important contributions that legal research and writing programs (or

lawyering process programs that involve legal research and writing) is that they teach some of

the skills that are crucial to practicing lawyers: finding the law, interpreting the law, and

communicating the law in such a way that it fits the needs of a particular client (albeit usually a

hypothetical one). Each law student is involved actively in the process. It is “hands-on” in the

extreme. And, because legal research and writing courses involve learning by doing, the

learning is more likely to stick with the students. (The hands-on learning is why I also love

clinical programs and practica.)

34. Not that there’s anything wrong with that. But because law professors have a

different function from lawyers, “thinking like a law professor” does not necessarily teach a law

student how to “think like a lawyer.”

35. In fact, how could we test whether the students are learning how to think like lawyers?

Do we, as law professors, agree on what thinking like a lawyer means?

36. “What qualifies a person, therefore, to teach law is not experience in the work of a

lawyer’s office, not experience in dealing with men, not experience in the trial or argument of

cases, not experience, in short, in using law, but experience in learning law.” Joel Seligman, The

High Citadel: The Influence of Harvard Law School 37 (Houghton Mifflin Co. 1978); see also Randall,

supra n. 23, at 209 (“Faculty may conform to the Langdellian method because we don’t want to

appear stupid [or] unfit, and because we are afraid to challenge the collective judgment about

how best to teach. Thus, we carry the current paradigm of law school teaching on through

sheer momentum . . . .”). At least in other graduate disciplines, there is a period of

apprenticeship in research and teaching skills. Ph.D. candidates act as research assistants and as

teaching assistants. They present papers at conferences. They do the type of research that their

advisors have done. And that intense type of training is in fields where the main point of

graduate work is to turn out new faculty members. In law, the main point of law school is to

turn out lawyers. Relatively speaking, very few law students become law professors. Yet that’s

what we tend to train them to be. John D. Ayers, So Near to Cleveland, So Far from God: An Essay

on the Ethnography of Bankruptcy, 61 U. Cin. L. Rev. 407, 408-09 (1992).

Journal of the Association of Legal Writing Directors

102

during the course, are given little to no opportunity to try out the theories that

they are learning, and are told that—after the lack of feedback and the lack of

repetitive practice—100 percent of their grade depends on what questions a

professor asks on the final exam?

My guess is that the reason we focus little

time on giving examinations and other feedback during a course is that law

professors are usually rewarded more for their writing and individual prestige

than they are for how well they teach.

Even If We Teach Students How To Think Like Lawyers,

Will That Make Them Good Lawyers?

No practicing lawyer would consider the skill of thinking like a lawyer

enough. Assuming that we mean the ability to analyze critically and to convey

that analysis cogently, those skills are necessary, but they are far from

sufficient when it comes to educating good lawyers. There is a whole panoply

of other skills that we need to teach. Even if we assume that what we require

in most law school curricula is what we should be teaching, it is no secret that

most law students need help in writing.

They also need help in

understanding how other fields relate to law and to the solving of complex

problems, in understanding the non-legal reasons why people choose to take

certain actions or behave in certain ways, and in understanding what the

lawyer’s role should be in solving problems. They need some grounding in

economics, statistics, accounting, psychology, sociology, and history, among

other things. What they need is the classic liberal education that represented

Nineteenth Century high-quality education. If they don’t get that education as

undergraduates—and there’s no reason to assume that they do

—then they

need it before they receive their law degrees and go out into the world to

practice law. The honest answer is that thinking like a lawyer only gets our

students so far. If they can’t write, if they can’t speak well, if they can’t think

strategically, if they can’t work in teams, and if they can’t relate to other

37. Cf. Randall, supra n. 23, at 202. There is research about exam-writing, but I have

never been a member of a law faculty that has discussed exam-writing techniques in even one

meeting. The trend toward multiple-choice examinations creates an even greater need for

understanding how to write (and grade) useful questions. Multiple-choice examinations are

great for increasing course coverage (and for freeing up time that would otherwise be devoted

to grading essay answers), but they only work if the questions are valid.

38. Although “professor of the year” awards and letters of commendation sent to deans

are nice recognitions of good teaching, it is difficult, from my perspective, to say that such

awards and letters necessarily reflect good teaching. I hope that they do, but they could also

reflect popular teaching, which is a different matter entirely.

39. And not just help in learning how to write like a lawyer—help in learning how to

write, period. I’m appalled by the basic errors that I’ve seen in grammar, syntax, and spelling.

40. Law schools, after all, neither require applicants to have received degrees in specific

subjects nor to have taken certain specified courses. Medical schools spell out the

fundamentals that medical students need before they can be admitted to medical school.

Business schools spell out the fundamentals needed for business school. Why don’t law

schools do the same thing?

Is “Thinking Like a Lawyer” Really What We Want to Teach?

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people, all the thinking like a lawyer in the world will not help them become

good lawyers.

The problem starts in the typical first-year curriculum, which is heavy on

case analysis but light on the other skills that law students need, such as

statutory analysis and an understanding of transactional work. How many

courses does a law student need in order to master case analysis? One? Two?

Surely, no law student needs nine or ten courses to master this skill. By

emphasizing one skill to the exclusion of others, we are keeping the students

from taking full advantage of their upper-level courses. If we wait until the

second year to teach statutory analysis, that means that the student will have

fewer opportunities to take statutory courses in the second and third years. If

we teach primarily litigation-based skills, what do we do with those students

(and I would guess that they comprise a significant portion of the whole)

who never want to litigate and want to do deals instead? Most law school

curricula give students no guidance on the breadth of knowledge that they’ll

need to “hit the ground jogging.”

Even if we taught all of the social science and business-related subjects

necessary to make our law students into good lawyers, we would still face

another significant problem. Except for clinical and other hands-on

experiences, we don’t teach law students how interrelated the various

substantive (and practical) areas are—instead, we convey the false impression

that every substantive area is a silo, distinct unto itself. We teach the basic

contracts course without simultaneously putting contracts (or torts) into a civil

procedure context. We teach bankruptcy law without discussing how secured

transactions become significant in a bankruptcy case. We teach business

associations without showing how tax and other financial considerations drive

the choice of organization. We teach evidence without linking it to a

substantive area (for example, criminal law) that would give students a specific

understanding of how they would prove each element of a crime. Once

students become graduates, and once graduates pass the bar exam, they no

longer have the luxury of assuming that their clients will come to them with a

contracts problem, or a custody problem, or any other sort of single

substantive law problem. Clients come to lawyers with problems, period, and

those problems cross all sorts of substantive law borders.

Most academics

accept this principle—hence, the intermittent use of interdisciplinary courses

41. See Nancy B. Rapoport, Error as an Example: Grades Lost in Trees, Hous. Chron. 4H

(Feb. 24, 2002).

42. See Kevin Douglas & Gordon Rose, More Than “Learning to Think Like a Lawyer”: The

Empirical Research on Legal Education, 34 Creighton L. Rev. 73, 108-9 (2000) (discussing law

students’ career aspirations).

43. Dean Joseph Harbaugh gave me this phrase when he and I were talking about how

new ways of teaching might not be able to turn graduates immediately into good lawyers who

“hit the ground running,” but at least some new ways of teaching enable graduates to “hit the

ground jogging.” Conversation with Joseph Harbaugh, Dean & Prof., Nova S.E. U. (May 31,

2001). I’m afraid that most curricula only enable law students to hit the ground strolling—or,

worse yet, just standing.

44. Not to mention the fact that the problems involve non-legal considerations.

Journal of the Association of Legal Writing Directors

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(the “law and” courses) and the ever-more-popular scholarship that draws on

non-legal disciplines for analyzing legal issues.

Why Should the Structure and Content of the Curriculum Matter?

When you combine the hoary old saw of “thinking like a lawyer” with the

no-longer-true assumptions that (1) law firms will train graduates on how to

be lawyers and (2) most law graduates practice in groups that provide such

training, you get a crisis that threatens the legitimacy of legal education.

are sending out into the world people who may be making six-figure salaries

but who can’t draft a client letter, a simple contract, or a complaint. Who

pays for this lack of a thorough education? The lawyers for whom the

graduates work (in the extra expense of basic training, post-graduation) and

the clients of those graduates (who may not be able to tell an experienced

lawyer from a novice, and who deserve better).

In addition, take the crushing debt load that the average law graduate

carries.

How long will it be before those graduates rebel at paying so much

money for a degree that bears so little resemblance to what they will do in

practice? These are people who need high-paying jobs simply to pay back

their loans—let alone pay rent—and who are under increasing pressure from

their employers to do more, do it better, and do it faster so that the employer

can raise the funds that pay for those large salaries.

Take it a step further. Law firms are already threatened by

multidisciplinary practice and the unauthorized practice of law.

Clients are

already insisting on the efficient practice of law, and they are looking for one-

stop shopping. If they can’t get high-quality legal services from lawyers, they

will lobby to get the same type of advice from other professionals, even if they

have to call that advice something besides “legal advice.”

45. John D. Ayer, Aliens Are Coming! Drain the Pool, 88 Mich. L. Rev. 1584 (1990);

Charles W. Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of

Interdisciplinary Legal Scholarship, 41 Duke L.J. 191 (1991).

46. I refuse to believe the excuse that, because some law graduates do not practice law,

law schools do not have to teach law students how to be lawyers. Most of our students do

practice law, at least for a while, after they graduate.

47. See generally Michael A. Olivas, Paying for a Law Degree: Trends in Student Borrowing and

the Ability to Repay Debt, 49 J. Leg. Educ. 333 (1999).

48. See generally National Association for Law Placement, 2000 Associate Salary Survey

National Summary Chart <http://www.nalp.org/nalpresearch/sumch00.htm> (accessed Feb. 26,

2002 ) (listing median base salaries that are organized by associate year and firm size).

49. See John S. Dzienkowski & Robert Peroni, Multidisciplinary Practice and the American

Legal Profession: A Market Approach to Regulating the Delivery of Legal Services in the Twenty-First

Century, 69 Fordham L. Rev. 83, 85 (2000); Charles Wood, Call it “One-Stop Shopping”: Should

Lawyers Go Into Business With Non-Lawyers?, 25 Mont. Law. 5, 6-7 (Nov. 1999).

50. See ABA Commission on Multidisciplinary Practice, Background Paper on

Multidisciplinary Practice: Issues and Developments <http://www.abanet.org/cpr/multicomreport019

9.html> (Jan. 1999).

Is “Thinking Like a Lawyer” Really What We Want to Teach?

105

Traditional legal education runs the risk of becoming irrelevant to the

practice of law.

Business schools (and even schools of social science) could

teach much of what we teach, and business school gives students more

chances for teamwork and a better understanding of how businesses (read:

clients) work. If law schools lose their monopoly on legal education, what,

then, will become of traditional law schools? We have to change what we are

doing, and soon.

What’s Keeping Us From Teaching

the Full Panoply of Necessary Skills?

Fear of becoming a trade school and losing our hard-won place in

academia. My theory about why law professors are so nervous about being

thought of as trade school teachers is that, secretly, we fear being called out as

frauds by the rest of academia. After all, most other academics earned their

Ph.D. gowns by writing and defending dissertations after several years of

research. Our regalia

mimics the traditional Ph.D. gowns, but all we did to

earn them was to obtain the entry-level J.D. degree. If we are just teaching

“skills,” the theory would go, then we do not really belong in a university

setting.

This argument ignores the use of theory in the skills-related courses. For

example, it is impossible to craft a complaint without understanding what the

plaintiff will need to prove. It is similarly impossible to draft a contract

without understanding the theory of contract formation, which underlies any

effort to get a court to enforce a contract. New types of law emerge all the

time. Think about such fields as cyberlaw, which simply did not exist twenty

51. At this year’s ABA Conference on Development (formally 2001: A Development

Odyssey, A Conference on Law School Development for Deans and Administrators), Dean John Sexton of

New York University School of Law (and soon-to-be President of NYU starting May 2002)

pointed out that undergraduate institutions are getting into the field of legal research, and he

cited Princeton’s new Program in Law and Public Affairs. John Sexton, Presentation,

Development Future Think (ABA’s 2001 Conf. for Deans & Adminstr., Jackson Hole, Wyo., May

30, 2001). Information on this program can be found at <http://www.princeton.edu/~lapa/

>. The web site makes this interesting observation: “Although Princeton has no law school, it is

home to a distinguished tradition of scholarly research and teaching about law-related subjects.”

Id. (emphasis added).

If United States undergraduate institutions eventually give bachelors’ degrees in law, then

what stops those graduates with a B.A. from going straight into an L.L.M. program, skipping

the J.D. stage entirely? (I know, I know—most state bars require a J.D. for those who want to

practice in a given state; but apparently New York State will let those who graduate with a

foreign LL.M. degree sit for the bar. It is possible that other states will follow suit.) See New

York State Board of Law Examiners, Foreign Legal Education <http://www.nybarexam.org/

foreign.htm> (last updated Jan. 17, 2002). That’s Dean Sexton’s point.

52. Except, I think, for the Stanford J.D. gowns, which look nothing like the usual Ph.D.

regalia. Even the Stanford Ph.D. gowns don’t look like the usual Ph.D. regalia. Instead of bell

sleeves, Stanford has open sleeves. Moreover, Stanford eschews the traditional stripes on the

sleeves. The gown itself is open, except for a catch at the neck to keep the whole thing from

falling off. I have no idea why the Stanford regalia is different, but it is.

Journal of the Association of Legal Writing Directors

106

years ago. The theory drives—in fact, must drive—the practice and the skills

training. Skills can’t be taught well if they’re taught in a vacuum, divorced

from theory. We will still need theorists, and their research will still be a

valuable contribution to the rest of academia.

Fear of moving away from how the elite schools teach law. There is

a real sense in some schools that all elite schools share the same curriculum,

and moving away from a tried-and-true curriculum that worked for Harvard

over the years would be a move leading to lower rankings.

But the initial

assumption about curricular similarity simply is not true. The top law schools

are all experimenting with new pedagogical ideas, and my guess is that they

always have experimented with pedagogy.

Harvard’s traditional curriculum

was itself an experiment to see if some way of learning law other than copying

treatises would work.

The elite schools know that change is constant, even

for them.

And another thing: different schools have different needs and different

advantages. Houston is located in the medical and energy center of the world,

and the University of Houston Law Center (UHLC) has taken advantage of

these opportunities to create an LL.M. in energy and environmental law and

an outstanding Health Law & Policy program. UHLC also took advantage of

the fact that it had three top-notch intellectual property and information law

scholars and combined their expertise in the Intellectual Property and

Information Law program, which has also received high acclaim. Those

schools that ignore their particular strengths and their setting (urban/rural;

public/private; large/small; etc.) are missing the boat.

Fear of having to revise well-thought-out courses to add new

components (and the fear of not being rewarded for reworking those

courses). We all put in long hours to develop our classes and, after we’ve

taught a particular class for a while, we have a strong sense of what belongs

where. There is usually very little room for additional material, unless we’re

willing to give up something else that is important. Moreover, if the dean

rewards publishing significantly more than she rewards teaching, there is no

financial incentive to rework our courses. Why spend time on something that

is already working well when we can spend time writing something new that

brings us more recognition?

The obvious response to this is that deans need to have some sort of

incentive system in place that encourages reworking (and occasionally

scrapping) courses in order to improve the curriculum. If it isn’t important

enough for the dean to throw money at it, it will not happen.

53. For my views on the U.S. News & World Report law school rankings, see Nancy B.

Rapoport, Ratings, Not Rankings: Why U.S. News & World Report Shouldn’t Want To Be Compared

To Time and Newsweek—or The New Yorker, 60 Ohio St. L.J. 1097 (1999).

54. See Steven Sheppard, Casebooks, Commentaries, and Curmudgeons: An Introductory History of

Law in the Lecture Hall, 82 Iowa L. Rev. 547, 629-34 (1997).

55. Id. at 553.

Is “Thinking Like a Lawyer” Really What We Want to Teach?

107

Fear of making a mistake in legal pedagogy. To the extent that we do

care about legal pedagogy (and are not just giving it lip service), then any

radical change in our curriculum must necessarily give us pause. The basic

curriculum has worked decently for more than one hundred years; what if we

guess wrong about revising the curriculum? Won’t we ruin one or two entire

generations of lawyers who will not have the doctrinal basis to extend the law

to as-yet-unknown fields?

That is a real risk, of course, but we are also taking a risk by not thinking

through appropriate changes in the curriculum. Law isn’t static, so why

should we assume that any law curriculum should be?

Fear of not knowing what it is that lawyers do and being exposed as

frauds. This fear is related to the fact that most law faculties at most elite law

schools spent little time in actual practice before entering academia. Those

faculty members who had some exposure to the practice of law—as

associates, say, at law firms—have a sense of what the practice of law is like,

but few of them have as much exposure as do those lawyers who stayed in

practice. And very few current faculty members have an active practice.

The practice of law changes all the time. How do we expect legal academics

to keep up with what lawyers are doing? There is, of course, the odd CLE or

consultant work, and that keeps us in contact with lawyers. But I know that I

wouldn’t want to go out there today and work on a large Chapter 11

bankruptcy case. I’ve been out of touch with the day-to-day issues for too

long.

Even though I believe in what I write, and I believe in the value of my

research, I still worry that I may be missing more relevant problems that

lawyers are facing.

The fear of being “found out” as an ivory-tower academic with no

understanding of the “real” world

is legitimate. Failing to revise a

curriculum because of that fear is not. There are lawyers who would be happy

to lend their advice to law faculties about what they would like us to consider

when we revise our curricula. Those lawyers won’t usurp the role of the

faculty to determine the curriculum. No one (not even a law dean) can usurp

that role. Think of input from lawyers like any other collection of data. That

input is valuable, but it’s what we do with it that counts.

The Ultimate Question:

56. In fact, in order to count a faculty member as full-time, a law school doesn’t want to

have that faculty member have an active law practice. See ABA, Standards for Approval of Law

Schools and Interpretations <http://www.abanet.org/legaled/standards/chapter4.

html> (accessed Feb. 26, 2002). Interpretation 402-4 states:

Regularly engaging in law practice, having an ongoing relationship with a law firm or

a business, being named on a law firm letterhead, or having a professional telephone

listing is prima facie evidence that an individual has “outside office or business

activities” and is not a full-time faculty member under this Standard.

57. Since mid-1991, in fact.

58. See Jon Newberry, Nobody’s Perfeck, 82 ABA J. 70 (March 1996).

Journal of the Association of Legal Writing Directors

108

Are We Conscious of the Choices that We’re Making?

At the session in the ALWD conference, in which I presented an earlier

version of this article, Richard Neumann asked an intriguing question: “Who

are our law schools run for?”

That question, so simple and yet so important,

completely threw me for a loop. I honestly don’t think that any of us knows

the answer to his question—and I certainly don’t think that university

presidents, law professors, students, and lawyers would ever agree on the same

answer.

But if we can’t answer this fundamental question, then how do we

decide what goals we want to achieve?

The mantra of legal education—that we teach our students to think like

lawyers—is no longer sufficient. If we don’t know why we’re teaching our

students that skill

to the exclusion or diminishment of other skills, then we

are doing them no favors. And we are cheating ourselves of a richer

discussion of our own purposes.

“Would you tell me, please, which way I ought to go from here?”

“ ‘That depends a good deal on where you want to get to,’ said the

[Cheshire] Cat.”

“ ‘I don’t much care where—’ said Alice.”

“ ‘Then it doesn’t matter which way you go,’ said the Cat.”

59. Are they run for the universities in which the schools are located? For the law

professors in those schools? For the students? For the practicing bar of the jurisdiction in

which the school’s graduates are most likely to practice? Are they run for all of those groups

simultaneously? If so, which group’s needs should receive prime consideration? Professor

Neumann suggested that the best answer might have something in common with the question of

who “owns” a corporation. Not that that question is always easy to answer, either. See e.g. Bruce A.

Markell, The Folly of Representing Insolvent Corporations: Examining Lawyer Liability and Ethical Issues

Involved in Extending Fiduciary Duties to Creditors, 6 J. Bankr. L. & Prac. 403 (1997).

60. Nor would the various people in those groups have the same answer. It is like the

old joke about economists: two economists can give you three different opinions.

61. Or set of skills.

62. Knowledge Matters Ltd., Alice’s Adventures in Wonderland, Lewis Carroll, Chapter 6—Pig

and Pepper <http://www.literature.org/authors/carroll-lewis/alices-adventures-in-wonderland

/chapter-06.html> (last updated June 29, 1999).