Thursday, December 15, 2011

Teaching Law: Training, Education, and Thinking

I don't always agree with Stanley Fish, the former English professor and noted literary theorist who morphed into a law school professor a number of years ago and currently resides temporarily at Yale Law School. Fish, in fact, like any other deep and serious thinker, has sometimes changed his mind about important issues (this was especially true in his literary theory days) -- and so, by definition, one cannot agree with everything he has said. But, as Emerson told us, "a foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines." Real thinkers -- rather than persons preoccupied with their image or persona, like those "little statesmen," or those who adhere blindly to a preset, inflexible ideology, like Emerson's "divines" -- go where the mind leads and are fully willing to change their minds when circumstances, reasons, or arguments prompt a new way of seeing. Our politicians would do well to heed this. In any event, Professor Fish could be classified as a thinker worth attending to -- even if not always to agree.

But this time I agree with him. In a column in The New York Times this week, Fish took issue with those who loudly criticize legal education for its failure to produce lawyers who are "practice ready" right after they pick up their diploma. This critique has become increasingly common in recent years, though the fact has been generally acknowledged for decades, and it lies at the heart of the current attack on law schools for saddling their graduates with huge debt that does not seem to be justified by the practical skills and knowledge they learn in their classrooms (see, for example, this article from the Times). I have myself suggested that practical computer/technological skills should be taught as part of a decent legal education because lawyers must enter a practice world in which such skills are absolutely necessary.

Fish disagrees that the point of a law school education is practical; it is, rather, to teach an understanding of the enterprise of law and all that that means. "The practice of law," he says, "is more than a technical/strategic exercise" that can be taught by schools or law firms as if it were a bag of "tricks of the trade." Instead, the marshaling of "doctrines, precedents, rules, and tests" that a lawyer engages in on behalf of a client "takes place within an enterprise that is purposive. That is, law is more than an aggregation of discrete tactics and procedures; it is an enterprise informed by a vision of how the state can and cannot employ the legalized violence of which it is the sole proprietor."

Fish thinks that such a view of the law -- as a purposive enterprise caught up in larger questions of power and authority, legitimacy and rights, and so on -- should be the focus of legal education. Such a focus does not preclude "training" in a body of skills and background knowledge (e.g., computer/technological competence), but it does mean that such training must take place within a context in which "education" rather than "training" is the goal, a context within which the overall project is conveyed, questioned, and engaged. I think Fish is right about this. You cannot teach someone to be a good baseball player merely by training him to swing like Albert Pujols, or to throw a curveball or two-seam fastball, or how to field a groundball or execute a crow-hop for a throw from the outfield. Someone could have all those skills but if he doesn't understand the purposes of the movements, the rules of the game, the overall design of the enterprise we call baseball -- if he doesn't know it was a game into which the skills he's being taught fit and serve distinctive purposes --  he will not be a good baseball player. (The philosophical among you will recognize shades of Wittgenstein and Searle here; Fish himself cites Searle.) So a proper legal education involves not just teaching some practical skills -- those are important but they can be picked up more easily in actual practice than in a school environment. In addition, and centrally, a proper legal education entails the location of those skills within the larger ongoing project that is the rule of law in the United States.

That means that the bulk of the study of law in school should be devoted to principles, to basic questions and issues, and to the role of law in a constitutional democracy. Traditional legal education may have overemphasized these topics to the point where the education was abstract and disconnected from what a lawyer would actually be doing once out the law school door, but a legal education that ignores these topics does not deserve the term "education," being only a training in the doing of practical tasks, not much different (though considerably more expensive) than the training of an auto mechanic. Fish is right: law students should be made to read, reflect upon, and engage with the ideas of Hobbes and Locke, Holmes and Cardozo, Bentham and Mill, Hart and Dworkin, and so on -- for those ideas, and our understanding of them, lay the foundations for the enterprise of law within a democratic republic. Law is a profession, not a trade -- and its practitioners deserve an education fitting a profession.

It should be remembered that, after obtaining their law license, most lawyers are required to do continuing "education": a certain number of hours sitting in a hotel meeting room learning about the nuts and bolts, the tricks and strategies, of practical lawyering. Continuing education almost never asks the larger questions (though I have found that when you do ask those questions in a CLE seminar, many lawyers respond quite positively). So if lawyers are to gain the knowledge and understanding Fish thinks important to the continuance of a real profession, it will have to be the focus of their coursework in law school.

Fish concludes by saying that "the emphasis on practical short-term payoffs has already laid waste to the traditional project of the liberal arts, which may not survive. Is the law next? The law is surely a practice but it is also a subject, and if it ceases to be a subject -- ceases to be an object of analysis in classrooms and in law reviews -- its practice will be diminished."

Right again. A number of factors have conspired to put liberal arts education in the United States in jeopardy. Sadly, "practical" programs designed to garner a job for the graduate, frequently in fields that once did not require a college degree (and really don't need to do so now) have nudged out liberal arts courses at many colleges and universities. Even when those schools do require exposure to the liberal arts, as in English requirements, the focus tends to be on reading and writing skills, and not with the development of the educated person's working knowledge of Shakespeare or Chaucer or Joyce or Eliot (let alone Milton or Dryden or Pope or Johnson). Recent years have seen the proliferation of so-called "masters-level" programs in a host of practical fields, programs that offer skills training and eschew theory; they even dispense with those long and detailed reading lists, designed to give the student a deep grounding in the history and philosophy of the field, that characterized traditional graduate education. Of course, such graduate programs are simply responding to the inflation of degree requirements: the same job that once required no more than an undergraduate degree, if that, now requires a masters degree, not because the real demands of the job have changed but only because employers and others have upped the ante in terms of the required credentials. Increasingly, we are a society that wants to see the practical "use" of whatever we teach our students; to a great extent we have lost the ability to see the importance of any education that does not have immediate cash value.

This myopic view of education -- as training for the workplace, rather than the public square, as conveyor of practical skills rather than the materials of real thought -- threatens legal education, as Fish makes clear. Clinical and semester-in-practice programs have a role to play, to be sure, but they should not be allowed to replace either the traditional, intellectual curriculum or the elective courses that push students to ask the deeper, more fundamental questions about the meaning and importance of the rule of law in constitutional democracy. To the extent that law comes to be seen only "as a means rather than an end, as a tool for solving problems rather than something of interest in its own right," we all suffer. Such a focus narrows our vision and cabins our ability to recognize the larger importance of law in a decent society.

Hannah Arendt observed that the most frightening thing about Adolf Eichmann was that he was quite good at mastering the practical skills necessary to perform his job, but he did not think. He never took a look at his life and his choices, never examined what he was doing with a critical eye, except perhaps to ask whether he was being efficient enough or using the proper tool or strategy. If we reduce legal education to the mastery of those tools and strategies, if we make it a practical education designed to equip the student for day-to-day law practice, if we belittle or diminish or eliminate consideration of the meaning of law and justice, or the role of law in a free society, we risk creating a host of little Eichmanns -- masters of tricks and tactics but unable and unwilling to think deeply about the larger import of what they do. And in the process, we will seriously damage our profession and eject it from its central place in our constitutional democracy.

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