Does Law School Prepare You to Practice? Part 2

Jordan Furlong of Law21 has kicked off an intriguing discussion in the LinkedIn Legal Innovation Group about my recent post: Does Law School Prepare You to Practice?  Thanks, Jordan, for using the post as a jumping off point for this discussion.

Denis Campbell joins in the discussion and, I think, quite effectively represents the anti-practice teaching argument:

“This opens an important debate about the purpose of schooling. An MBA does not prepare one to lead a corporation. An MS in Accounting does not a skilled auditor or tax advisor make. An MA does not prepare a writer to win a Pulitzer Prize.  What higher education is supposed to do is teach one how to think and rationalise one’s way through problems.”

Matthew Homann responds:

“In my view, the only people who don’t realize law schools are trade schools are the Professors and Deans.  Law schools don’t teach students to do 1/10th of the kind of things people expect every lawyer to be able to do. . . . I think law schools can do a decent job of preparing students for litigation — which would be great if any actually got to try cases.”

Personally, I wouldn’t have any objection to Denis Campbell’s point above if students were given a choice as to which educational model they preferred.  Sadly, the ABA only accredits law schools that follow the model of teaching one to “think like a lawyer,” while wholly rejecting other schools, such as online educators, that offer a different approach (for examples, see here, here and here).

In the United States, if the ABA and state bar associations did not create an artificially biased marketplace in favor of one educational model over all others by only accrediting “think like a lawyer” law schools, and the Denis Campbell Law School, for instance, could openly compete with the Matthew Homann School of Law, then it would be up to advocates of the “think like a lawyer” approach to prove that students want that method of teaching . . . or they would go under.  Right now, students are forced by the ABA accreditation process and the state bar associations to only attend law schools that, for the most part, do not apply the “think like a lawyer” approach to transactional work.  If accreditation weren’t so difficult (e.g., requiring millions to be spent on a paper based library when most lawyers do 99% of their research electronically), you would see a wide variety of law schools popping up, and, out of that competition, I think you would find schools that marry theoretical teaching with the practice arena to be the most prestigious and popular.

Additionally, I would invite you to consider that it may not be the most on point comparison to argue that because an MBA does not prepare you immediately to be the chief executive officer of a large corporation, law schools should not teach practice skills.  Instead, it might be better to ask: does an MBA immediately allow you to run a departmental team within a corporation?  And, after studying finance, accounting, marketing, sales, and human resources in detail, I believe the answer is “yes.”  An accounting degree may not make you a skilled auditor, but it will allow you to effectively evaluate income statements, complete tax returns, and understand and maintain the finances of a company to work effectively in a junior position right away.  Also, MFA programs in writing do little else but teach students to write.  Many talented students have graduated from the famous University of Iowa writing program with a completed novel and a publishing deal.

Law students are not asking for law schools to prepare them to sit first chair in an antitrust trial upon graduation, or ready to draft and negotiate a one hundred million dollar outsourcing transaction.  They would, however, like to be able to draft a straightforward confidentiality agreement, handle simple goods or services deals, and understand basic negotiation techniques.  Better yet, all of these practice skills can be easily taught along with cutting edge legal scholarship focusing on theory. As noted in the previous post here:

“What I find most interesting about this yawning divide between academia and practice, is that, for the life of me, I can’t understand why this needs to be the case.  If you are a professor focused on the empirical legal studies movement, why can’t you teach actual practice skills in the context of your research?  If you write about discourse analysis, why can’t you analyze a contract negotiation?  If you are an economics and the law scholar, why can’t you instruct students on the economic administration of law firms and explore the nature of perverse incentives?”

I’m surprised to find the issue so controversial.  Perhaps there is tremendous concern about change, particularly so for law professors with little to no practice experience.  I remember my torts class, the very first class I had in law school.  Our professor had a law degree and doctoral degree in philosophy, and was quite fascinating to talk to about postmodernism and legal philosophy.  I felt quite enriched to have a professor injecting these kinds of theories into tort law, and in no way would want to excise that theoretical approach.  At the same time, my fellow students were continually frustrated that he could not explain how a case could be initiated and would play out.  Upon hearing these concerns, the professor reacted with equal frustration, stating that such questions were not particularly important in his mind.

There has to be a better approach, a third way, and the marriage of theory and practice offers that path.  Ultimately, it need not be a zero sum game: we can have both.

What do you think?

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