Trees v. Forest
The problem with law school—when I went four decades ago, and today—is one of perspective: The big picture hardly matters, and the little picture is everything. Fortunately, I know how to fix it.
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The voice on the telephone was from a long time ago and far, far away. It belonged to a friend from the University of Texas law school, an honor student, whom I hadn’t seen since the day he graduated. (Notice I didn’t say the day “we” graduated. It took me four years to finish, one year more than just about everyone else.) He was in town for our fortieth reunion. Would he see me there? I hadn’t even known that there was a fortieth reunion—not that I would have gone anyway. Trained to respect the principle of stare decisis, I saw no reason to overturn the precedent I had established in law school with regard to nonattendance. But we did get together for a short visit.
All his family news was great: long marriage, smart kids, summer retreat on Long Island. But the professional news was not so good. Around ten years ago, his major client had been taken over by a rival company, which had its own lawyers; eventually, he’d had to leave his law firm. He did catch on with another firm, but, he told me, “I’m just a high-priced grunt lawyer.” When he turns 65, which is about to happen, he will probably have to retire; with luck, he said, he might be able to work another year or two. He ended with a lament similar to others I have heard from friends in Texas who are lawyers of a certain age: “Law is no longer a profession. It’s a business. All that matters is how many hours you bill. Even the quality of the work is secondary.”
For the umpteenth time, I was thankful that I have not spent my working years in the practice of law. I have that hard-won law degree, I passed the bar exam, and I even worked as a lawyer in the Texas Senate for a few years, drafting bills—not exactly the prime real estate of the legal profession. But all the time I was in law school, I could never envision myself writing a will or preparing a contract for a land deal or whatever else it is that lawyers do. I knew nothing more about the actual practice of law when I left law school than I did when I began. Come to think of it, what did I get out of law school, anyway?
That question has remained in my mind ever since I saw my former classmate. I found myself remembering things I hadn’t thought about in forty years. The civil procedure professor whose multiple-choice questions were to be answered along the lines of “Which of the following is the least likely to be incorrect?” The real-life dilemma from nineteenth-century England in which three victims of a shipwreck, adrift in a lifeboat, decided to kill and eat a fourth victim, who appeared to be near death, so that the others could survive: Were they guilty of murder? (My answer was no, because law cannot exist outside of society; in the actual case, the defendants were convicted and their sentences were commuted to six months’ imprisonment.) The legendary constitutional law professor who wouldn’t call on women students (of whom there were very few at the time) and, when the women protested, ceased to call on students at all. Being called on in class to explain the reasoning behind a court’s decision, knowing that whatever answer I gave would be followed by another question, and another, until my confusion was total and my humiliation complete. This was the Socratic method, used by every major law school in those days: 1. Hide the ball. 2. Make the student try to find it. 3. If, perchance, the student actually does hit upon the perfect answer, pretend he didn’t. 4. Hide the ball again. I’m not sure when I knew that the law was not for me, but I think it was before the first class on the first day of the first year.
If I didn’t quite meet law school’s expectations, law school didn’t quite meet mine either. Something was missing, and it was the big picture of the law, which is all the corny stuff about equal justice and fairness. It was hardly mentioned—not by professors, not by students. I had the feeling that we were being trained to think of such matters as superfluous to the workaday function of the law; what really mattered was the little picture of why a particular case was decided in a particular way. This was, and still is, the central dilemma of law school: Is it a trade school, designed to prepare students to get a job, or is it a graduate program that shares the overall mission of the academy, which is to teach students how to think?
In search of an answer, I decided to go back to law school for a few days. I attended a seminar on the Texas Supreme Court, visited a class on evidence, interviewed several former faculty members and administrators. What I found was a place that had changed a lot—and for the better—since I had been there but that still wasn’t sure what it wanted to be when it grew up.
The issue of trade school versus haven for scholarship has exploded in recent years. Indeed, law schools are increasingly under pressure from academicians in traditional disciplines who are bent on expanding the study of law to include history, economics, and social science. The academicians are asking, in effect, whether law professors are true scholars. Why should the law profs be writing about, say, the economic consequences of antitrust law when they may lack expertise in economics? Shouldn’t lawyers have some idea what will happen in the real world if this side or that prevails in a major lawsuit? Suddenly the economists get a foot in the door, and after them come the social scientists, and pretty soon you have law schools (most famously, Yale) where the policy behind the law is of more concern than the law itself; in fact, the very meaning of law may depend on the policy. Consider a law that prohibits vehicles on park paths. Should bicycles be treated as vehicles? If the reason for the law is to prevent pollution, then the answer is no. If the reason for the law is to prevent accidents, then the answer is yes. This approach to the law is a slippery slope—imagine that the subject is abortion, and the policy behind it—on which the line between law and politics is too easily erased.
The tension between professors with law degrees and those with Ph.D.’s (usually in addition to law degrees) exists, of course, not only at UT but at every major law school. Many Ph.D.-less law professors suspect that the profs with Ph.D.’s are more interested in teaching their academic disciplines than in teaching the law, more drawn to exploring the policy behind the law than the law itself.
That would have been fine with me. The truth is that I found the first-year curriculum (the big survey courses of contracts, property, torts, and constitutional law) to be incredibly stimulating—but little of the stimulation came from my professors. Law, I came to believe, is a liberal arts education in how the world really works. Here we were, encountering one of the most magnificent governing institutions in the entire world—the common law, an acknowledgement that we of the present are bound by the wisdom of the past—and hardly a word was said about it in law school. Here we were, learning how the law of property shaped Anglo-American civilization—and not a word was said about that either. Law school was all trees, no forest. In the law of contracts lay the heart of the legal doctrines that made the Industrial Revolution possible. I remember being fascinated by a case called Hadley v. Baxendale whose significance was that it restricted damages for breach of contract. This was a momentous decision. It cleared the way for modern business, because it said that breaking a contract is not a moral failing. It is merely a business decision. The breaching party has to pay the actual damages caused by the breach, of course, but not emotional damages like pain and suffering. I told this to one of the faculty members I interviewed, feeling pretty proud of myself until he said, “Pain and suffering wasn’t Hadley. It was Hawkins v. McGee.” I guess that must have been one of the classes I missed.
Whatever intellectual content law school had to offer disappeared after the first year. My last three years of law school were basically worthless—one dreary course followed by the next. Sales. Commercial paper. Insurance. Oil and gas. Texas land titles. Trusts. Worst of all, legal accounting. Today’s curriculum is much broader and is taught far better. In the evidence class I visited, the professor posed questions but without hide-the-ball gamesmanship. Much of the time he lectured—something that was rare in my day—occasionally breaking away to ask questions. Then he cleared up any lingering confusion by explaining the basic rules involved and how courts invoke them. I left class having actually learned some law: that a judge trying to decide whether to admit evidence must weigh its probative value against the prejudice that can arise from its improper use.
If I were the dean of the law school, I would leave the first-year curriculum pretty much intact and completely redo the second and third years. Most of what a student needs to learn occurs in the first year and doesn’t come out of any law book. It is a way of thinking, a way of rewiring one’s thought processes to focus on what makes an argument valid or invalid. Thus, when my wife once told me that I had failed to clean the kitchen because two pots remained unscrubbed, I responded that I had met the test of “substantial performance.” This is called “thinking like a lawyer,” and I do not recommend it in domestic situations. More usefully, I came away from law school with a buzzer implanted in my head that goes off when my arguments, written or oral, jump the track. The second year would involve practical law every lawyer should know, such as marital property rights, wills and estates, federal tax law, criminal law, and basic corporate organization law. That’s semester one. Semester two would be entirely given over to clinics (UT has thirteen of them, on subjects like children’s rights, domestic violence, and immigration) in which students would meet with real clients with real legal problems. Finally, the third year would be for specialization—nothing but seminars in a student’s chosen area of the law. Want to know everything there is to know about insurance law? Here’s your chance.
Had law school been designed like this, to create respect for the law, to make the law a living thing instead of something that exists only in a casebook, maybe the legal profession would not have taken the course that dismayed my former classmate. And I might even have gone to class.