Monthly Archives: October 1983

1983.10.09: The Way We Train Lawyers Is a Crime Against Society (Washington Post)

Washington Post, October 9, 1983 

The Way We Train Lawyers Is a Crime Against Society
James Lardner

James Lardner, formerly a Washington Post staffer, writes for The New Yorker.

LAST TUESDAY night, a third of the 550 first-year students at Harvard Law School attended a kind of counter-orientation at which two faculty members, Jerry Frug and Clare Dalton, warned the new arrivals, in effect: “This institution may be hazardous to your health.” The occasion was sponsored by a student group called The Alliance for a Better Legal Education, whose work seems cast in the mold of the vanished student activism of the 1960s. But the idea that law school does bad and strange things to people is becoming very widely held — even more widely among law professors, it seems, than among students.

In this age of nose-to-the-grindstone, don’t- upset-the-apple-cart education, there is striking support in many law faculties for basic change, along with deep pessimism about the prospects for that change. “These institutions that we’re a part of have this enormous power to get people to do things that they don’t feel comfortable doing,” says Leon Letwin, who teaches law at UCLA. “A lot of students come to law school with a social vision, thinking that there are a lot of things wrong out there. But they find that willy-nilly they get pressed in the direction of corporate law and hired- gun law — whoever’s going to pay the most. The same pressures operate on faculty members. “Most law teachers would honestly like to see lawyers who pursue (idealistic) objectives,” says Howard Lesnick, one of the founding faculty members of the new law school of the City University of New York. “But the process of cutting people off from those objectives starts the first day.” It starts, according to Harvard’s Duncan Kennedy, a Harvard law professor who was one of the founders of a reform coalition called Critical Legal Studies, with what he calls the “hot case” and the “cold case.” The “hot case” “usually involves a sympathetic plaintifff — say an Appalachian farm family — and an unsympathetic defendant — say a coal company. On first reading, it appears that the coal company has screwed the farm family, say by renting their land for strip mining, with a promise to restore it to its original condition once the coal has been extracted, and then reneging on the promise. “The point of the class discussion,” Kennedy continues, “will be that your initial reaction of outrage is naive, non-legal, irrelevant to what you’re supposed to be learning, and maybe substantively wrong into the bargain. There are good reasons for the awful result, when you take a legal and logical view, as opposed to a knee-jerk passionate view, and if you can’t muster those reasons, maybe you aren’t cut out to be a lawyer.” By contrast, the “cold case” is technical, boring, difficult and obscure — “a challenge to interest, understanding, even to wakefulness.” It can be on any subject, so long as it is of no political or moral or emotional significance. “Most students can’t fight the combination of cold cases and hot cases,” says Kennedy. “The cold cases are boring, but you have to do them if you want to become a lawyer. The hot cases cry out for response . . . but the system tells you to put away childish things. The choice is to develop some callouses and hit the books or admit failure almost before you’ve begun.” The discovery that expressions of moral fervor are foolish, while a more sophisticated and detached approach is the mark of a lawyer-in-the-making — this, according to the critics, is the “hidden curriculum” of legal education. In the old days, it was taught by overbearing, astringent professors on the model of John Houseman in “The Paper Chase,” who used the force and the example of their own minds to pound a new way of thinking called “legal reasoning” into their students. Nowadays, few professors are willing to ride over their students’ objections and confusions with such gusto. But most students are not impressed with the gentler, more tolerant style that has emerged as the standard alternative. It turns out, says Kennedy, that “the softies seem to get less matter across, they let things wander, and one begins to worry that their niceness is at the expense of a metaphysical quality called ‘rigor,’ thought to be essential to success on bar exams and in the grown-up world of practice.” If a teacher tries to innovate or discuss underlying issues, says Louis Sirico who teaches at Villanova, “The students just write you off.” With the decline of the star professor, many law teachers sense that their students aren’t really listening to them anymore. Instead, law students are listening to the world beyond the classroom — to the call of the big law firms, which say that if you play your cards right, you can begin your working life earning as much as $50,000 annually. And there’s no time to waste, because the big firms will be interviewing for summer jobs in the fall of the second year, and they won’t be interviewing just anybody. They will be after the students with the top first- year grades, as decided by final exams that stress doctrines and precedents and so-called “black letter” law. The top students will be so in demand in fact, that potential employers will fly them (and their spouses) across the country, wine them, dine them, and treat them to a taste of post-graduate life at its sweetest. “If you go into a big law firm and say, ‘Everybody who is really dealing with justice, with righting wrongs, please come out to the reception room,’ I don’t think very many would come,” says Clinton Bamberger, who used to run a clinical law program at Harvard and now does so at the University of Maryland in Baltimore. But he has seen many of his favorite students seduced away from the public interest work he loves. One actually broke down and cried on informing Bamberger he was taking a summer job in London for a Wall Street firm at $900 a week. His knowledge of Arabic had made him a “a priceless commodity,” Bamberger explains. Of course, the great majority of law students are not priceless commodities. And the recruiting process, linked to a clear hierarchy of employers and law schools and a meticulous system of grading and ranking students at each school, makes it hard for students to judge their achievements on any other scale of values. “There’s an awful lot of talent out there that the traditional system beats down,” says Lesnick. Roger Cramton, who teaches at Cornell (and used to be the dean there), fears the “conversion of the American law school from an educational enterprise into an organization performing a convenient grading, sorting and labeling function for legal employers. Cramton, a Republican who was the head of theLegal Services Corporation in the Ford administration, condemns the general “front-end loading” of the law curriculum — the distribution of “goodies” according to first-year performance. Still, for many law students the first year is a “high,” a frenzied charge through new and exciting territory. It is in the second and third years that the doldrums set in. As Dan Lowenstein, another UCLA teacher, puts it, “The fire burns brightly and then burns out.” The main ideas for reform fall into these loose categories: Lawyering. This is the broad term for various efforts to prepare students for the nitty-gritty of what they will actually be doing as lawyers. “The snappy repartee of the professional steel-trap mind in a Socratic dialogue,” says Bamberger, “is hardly a model of the passive, receptive and supportive listening required to learn facts and objectives from a client or a witness or to counsel a troubled client.” In the 1960s, many schools sought to answer this need with clinical law programs putting students to work on real problems involving real clients. More recently, Stanford and a few other schools have established courses that aim to teach basic “lawyering” skills — such things as interviewing a client and drawing up a contract. A deemphasis on ranking. Many schools have weighed, and a few have adopted, measures to make grades less precise or less dependent on examsmanship and to lighten their traumatic impact on first-year students. Building ethics, history and politics into the curriculum. In keeping with the notion that “legal reasoning” is inseparable from “moral reasoning,” many schools have created courses in ethics or incorporated ethical questions into courses with a broader focus. To most law school reformers, however, the need for historical and political context seems more urgent than the need for formal instruction in ethics. The typical law course jumps back and forth between court decisions from different eras, without reference to political change. “Law school teaching is completely ahistorical,” says Joan Williams of American University. But a few teachers have tried to make it otherwise. Washington and Lee’s L. H. LaRue, in a drastic break with tradition, teaches the landmark cases of constitutional law in simple chronological order. “The two most important facts about any case are its date and its author,” says LaRue. “To take a dramatic example, Brown v. Board of Education (the 1954 landmark desegregation decision). This is the most important case of the modern era, but there is no single principle that is worth expounding in connection with this case. The Court could have said that segregated schools are unconstitutional if they do a certain harm to blacks. Or it could have said that they are unconstitutional if public officials act with a certain intent. When you read the Brown opinion, you simply can’t tell which of these principles they meant to establish as law — the facts involved intent, whereas the language of the opinion mentioned harm. Acknowledging indeterminism. In the same spirit, some law professors emphasize the general flexibility of the law — its ability to bend this way and that depending on the mood of the moment. If Americans get fed up with pornography, for example, the concept of “freedom of speech” will obligingly yield to the concept of “community standards.” The courts, however, tend to act as if they are only applying timeless principles and precedents. Harvard’s Dalton, influenced by French structuralist theory, tries to “break down” traditional legal concepts, exposing hidden motives, underlying conflicts and contradictions which she says the law, at best, “papers over.” “There’s nothing logical about the place where the lines are drawn,” she says, “and in fact you find courts drawing them all over the shop.” The law school of the City University of New York has an unusual opportunity to do things differently, because it opened its doors for the first time this fall, with 150 first-year students. At CUNY, “doctrinal learning,” the mainstay of traditional legal education, will be downplayed on the grounds that it represents an unsatisfactory compromise between practice and theory. “The familiar ‘Socratic’ method of large-scale learning through progessional questioning of a few students will be used only when it seems productive,” says Howard Lesnick, who has been working on the CUNY curriculum with Dean Charles R. Halpern, formerly of Georgetown. “Our hope is to have more historical context, more philosophical context, more lawyering context and also to pay sufficient attention to the basics of legal doctrine,” Lesnick says. “Now that’s a tall order, and we’re conscious of the fact that it’s a tall order.” Physically, the school will be just as offbeat. Teachers and students will work together in a cluster of offices, classrooms and a library. “We’re trying to make the experience for the student more like coming to work than like coming to school, and to overcome that dichotomy between work and learning,” Lesnick explains. As for grades, the plan is to make them heavily dependent on class work, although doctrine will be tested through pass-fail “mastery exams.” Perhaps the school’s most novel feature is the nature of the student body. Unable, in any case, to compete with the elite schools for applicants, CUNY is trying to make a virtue of necessity by pursuing students who have already had substantial work experience. “We want people who have some sense of themselves, of why they want to be lawyers and what they want to accomplish as lawyers,” says Lesnick. But there are few new law schools in the offing, and few people are clamoring for them. Already, the United States has 128,000 law students, while Japan has only 15,000 lawyers. Even the former dean of Harvard Law School (now president of Harvard University), Derek C. Bok, deplores the legal profession’s “heavy use of human talent.” Law schools, says Bok, have become “the refuge of able, ambitious college seniors who cannot think of anything else they want to do.” The infatuation with reform is not, of course, universal. “I am certainly in favor of law schools concerning themselves with values,” says Francis Allen, a law professor of the old school at the University of Michigan. “What I deny is that the law schools have, in any significant way, declined to concern themselves with values.” In fact, says Allen, it is precisely through Socratic dialogue and the so-called “case method” — which the reformers are in the habit of deriding — that today’s law students are forced to examine underlying issues of right and wrong. “The kind of legal education which I think is under attack now is what I call humanistic education,” says Allen, “and by that I don’t mean humanitarian — be kind to children and animals. I’m talking about humanistic in the liberal arts sense. It places great emphasis on the skills of reading and writing and reasoning. It is very much concerned in the analysis of values. It does not ask simply how do you do it, but why do you do it, and ought we to be doing it at all. And that kind of education requires a question-and-answer process. “Now an awful lot of people — including people who are associated with the so-called Critical Legal Studies group — are disposed to believe that that’s not necessary. And I think the reason they think so is that they believe that they already know what the truth is, and if you know what the truth is, you don’t have to go through a dialectic process to test it.” The grading process also has its vigorous defenders — among them, Allen’s colleague Terrance Sandalow, the dean of Michigan Law School. “I believe it is important symbolically that institutions recognize excellence,” says Sandalow. “In law as in everything else, there are different degrees of sophistication, and we ought not to pretend that everybody does it just as well as everybody else. Hierarchy is a part of life. Law schools are not brotherhoods, they are societies. And in every society that we know anything about there is hierarchy.” If the community of law school critics and reformers were forced to unite behind a single program for change, it would probably take the broad form outlined by Stanford’s Lawrence M. Friedman. “If I were the total czar of all legal education,” he says, “I would completely abolish the present system and replace it with a curriculum that was half clinical training and half training in history, sociology, economics, philosophy, comparative law. It would be a truth-in-packaging thing. Half the time they would spend frankly and openly learning how to be a lawyer. And the remainder would be spent, frankly, in educating them.” But as Woodrow Wilson once said, “Changing a curriculum is like trying to move a graveyard.” Law professors themselves can be an obstacle. Many like the Socratic method because, if nothing else, it requires little preparation. In any case, coordinated reform does not come easily to a profession used to what Cramton calls the “Lone Ranger theory of teaching — ‘You do your thing in your courrk, althses, as long as I’m permitted to do my thing in mine.’ ” Employers can also be a force for changelessness. “In the early ’70s there was a lot of pressure from students to have pass-fail grades,” says Clinton Bamberger, who was then the dean of the Catholic University Law School. “But law firms said ‘Well, that isn’t of any use to us,’ and said to placement officers, ‘If your school is only going to have pass-fail grades we aren’t going to come and recruit there.” (That kind of pressure flows both ways. In 1972, the American Bar Association boldly suggested that law school be downscaled from three years to two. Among the major schools, all but Stanford objected strenuously, and the idea was scuttled.) It is the willfulness of law students themselves, however, that leads off most people’s lists of the barriers to reform. “I don’t think we take these innocents and somehow pervert their minds,” says Stanford’s Paul Brest. “I think that basically we simply feed the desires and instincts the student came to law school with. We get students who are very aggressive, very competitive and, with very clear exceptions, antiintellectual.” At Harvard last spring, 500 students took part in a protest demonstration (and 700 signed petitions) opposing a move to make class participation a factor in grading. One demonstrator carried a sign reading “Only Dogs Bark on Command.” What many students wanted instead was something they called a “no-hassle pass” — the absolute right not to participate in class discussion. At Rutgers, the teachers of “Contorts,” an unorthodox union of contracts and torts, were attacked for giving grades above the general curve. “A lot of people get really upset when you break the norm of grading,” explains Jay Feinman, who helped design and teach the new course. “We set up a learning situation in which, on traditional criteria, people learned more, so we gave higher grades. But other students complained. They said they were being put at a disadvantage.” After a four-month dispute, the “Contorts” grades were reduced across the board. What with student resistance, faculty resentment, employer demands and bureaucratic inertia, there are few external rewards — and many headaches — for the law teacher who tries to do things differently. Ann Friedman, another reform-minded member of the Rutgers faculty, sums up the problem: “Out of my hide,” she says, “cometh the improvement in teaching.”