In America, law is at the center of political life. We govern ourselves as a community through law. Acknowledging this state of affairs, it follows that legal education is, or at least should be understood as, political education of a certain type. This understanding of the nature of legal education informs how I teach Professional Responsibility (as well as my other courses) and how I understand the relationship between that course and the extant economic situation in the United States. It also informs how I think about the manner in which law schools should, at a broad level, react to the current state of economic affairs.
For this on-line symposium, I would like to address each of these subject-matters, albeit necessarily in a limited fashion. Specifically, I will discuss my approach to teaching Professional Responsibility and the single most important role that the present economic circumstances play in that course, which is as a point of departure for questioning the social status quo. I will also discuss a central aspect of my thoughts on how law schools should respond to the existing economic environment, namely that they should resist any urge to significantly restructure themselves along lines of market relevancy.
Building from the understanding that legal education is a type of political education, I organize my Professional Responsibility course around four facts. First, lawyers are men and women of action. Second, they are individuals with power. Third, lawyers are required, at times, to provide leadership, understood in the narrow concrete sense of problem-solving, managing a situation, managing people, etc. (i.e., leadership in a particular context to effect a positive end result, as opposed to a more “dramatic” sense that has less relevance for students). Fourth, different generations engage the world differently (and, more specifically, a not insignificant difference exists between the psychology of the Baby Boomers and that of Generations X and Y).
Against this backdrop, my Professional Responsibility course begins with a basic question: “How should one practice law?” Or, as I often put it to my students, “What does it mean to be a lawyer?”
In light of this approach to teaching Professional Responsibility – one that emphasizes the self-consciousness of my students – the extant economic situation provides, first and foremost, an opportunity for me and my students to reflect on the economic conditions in the United States today and, correspondingly, on the present nature of American political life – a discourse that includes consideration of the dominance of an economic psychology in parts of society that were traditionally understood to not be businesses (e.g., the press and medicine). Not surprisingly, there is a significant level of discontent among my students with much of what is happening in the country (including, of course, with what is directly happening in their lives) and this displeasure provides one discursive space in which to ask how they should act when they get out in the practice of law – again, as men and women of action, and men and women with power. Given their reactions to the prevailing state of affairs, how should they make decisions when it is their turn to do so? How should they lead? (To be clear, these questions are all raised in a practical way, and in a manner that recognizes the variety of pressures that exist in the practice of law and the limited room for maneuvering that young lawyers typically have when they are first starting their careers.)
On the question of how law schools should confront the current economic environment, we are all aware that some in the academy are calling on law schools to rethink and “retool” themselves, and thereby directly “respond to the market.” (I distinguish these individuals from more long-standing voices of reform who are not market focused. The latter are beyond the scope of this post.) In light of the fundamentally political character of legal education, I question this group, as their proposals – or at least the more robust ones that call on law schools to make sound business decisions and create market-ready graduates – appear both conceptually and socially problematic. Conceptually, that legal education is a type of political education means that curricular decision-making is, or at least should be understood as, political, and not business, in nature, at least in the first instance. Put differently, legal education is not a commodity and it is a mistake to think otherwise. Socially, the last several decades have demonstrated the problems associated with societal institutions re-organizing themselves along business lines (the decline of quality news reporting is one example). Given this lesson, shouldn’t calls for reform sound in a different direction – and in a manner that preserves the self-integrity of law schools, particularly given the power that the bar has when it chooses to have its voice heard? (Not unimportantly, these market-oriented reform proposals are also impractical. It is an error to believe that law schools could create a competent practitioner in three years. Except for the most rudimentary matters, the practice of law is far too complex to master in such a short period of time. The knowledge, technical ability, judgment and cultural competence required to practice successfully, simply at a basic level, takes several years post-graduation to acquire.)
In challenging these individuals, I am not suggesting that law schools shouldn’t change the way they educate students or that they couldn’t provide a better education that has relevance to the market. (In my opinion, law schools should devote greater time to foundational legal skills instruction, i.e., how to read a case, how to read a statute, how to think conceptually, how to write quality legal prose, understanding the importance of listening, etc.) What I am arguing against is an embrace of commercialism and an alignment with the social trends of recent history. Law schools play a critical role in this country. They help determine the quality of our communal life. Any self-questioning must begin with the recognition of this fact.