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?

If you enjoy this content, add me at twitter.com/JasonAnderman, thank you.

“When you learn how to be a doctor, you work on cadavers until you learn how to work on real people. When you learn to fly a plane, you spend some time in the simulator. If you want to be a lawyer, you still need to attend law school. Unfortunately, most of the legal academy doesn’t think it should stoop to actually teaching students how to be lawyers.”

I actually think that we need to divide the critique into litigation and transactional areas.

As to litigation, I’m not sure it’s fair to say that law schools do a poor job of training law students.  Most law schools have elaborate moot court programs, offer trial practice and have litigation focused legal writing classes.  Perhaps they could focus more on document review skills (though that would be mighty boring) or, better yet, motion practice and deposition training as well.  Nevertheless, when I graduated from law school and clerked for a judge in a trial court, I was definitely not lost and found the proceedings approachable.  But I did find that learning state rules of procedure, amassing necessary forms, and, obviously, learning substantive law to be the areas I needed to improve upon.  Perhaps these skills could be added to law school litigation training.

However, I ended up practicing as a transactional attorney, and I could not have been less prepared.  I was surprised to discover that the vast majority of a 1L contracts course does not help you much in drafting and negotiating deals.  Senior attorneys had to sit down and walk me through everything as if I’d never attended law school, and I definitely felt like I was starting from close to zero (of course, we think our WhichDraft.com contracts provide a great deal of that training at your fingertips).

We do need to remember, though, that the bulk of quality litigation training in law school is farmed out to adjunct professors, as the full time faculty is mainly focused on research and writing, as well as the rather amorphously defined skill of teaching students to “think like lawyers.”  What I find interesting is that, instead of defending oneself by pointing to the useful litigation training currently offered, some people seem to think that no actual practice skills need to be taught at all.  David Papke noted:

“We don’t want law school to be lawyer-training school. When we cave in to demands of that sort from the ABA and assorted study commissions, we actually invite alienation among law students and lawyers. Legal education should appreciate the depth of the legal discourse and explore its rich complexities. It should operate on a graduate-school level and graduate people truly learned in the law.”

And PrawfsBlog notes that the entire law professor profession is biased against practice, such that having substantial legal experience can prevent one from being an attractive candidate in the professor hiring market:

Having more than a few years of practical experience on your resume can be deadly for someone entering the teaching market. . . . The most sought after new hires often have advanced degrees in other disciplines, with little to no legal experience . . . Interdisciplinary or “theoretical” scholarship is viewed as weighty, while characterizing scholarship as “practical” may be the worse criticism one can hear. Treatises, practice guides, and books at many schools are entitled to almost no weight in tenure decisions. Legal publications in bar journals and popular press are often scorned, while non-legal publications are severely discounted. Legal writing and clinical faculty at some schools are still viewed as second-class citizens. And a distinguished legal career is often worth less than one publication with a leading law review. Courts perennially complain that legal scholarship is no longer helpful. The division between academia and practice seems as great as it has ever been.

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?

It seems to me that, as a profession, we can bridge this chasm.

If you enjoy this content, add me at twitter.com/JasonAnderman, thank you.